{
  "id": 8683792,
  "name": "LOUIS A. NIXON vs. HENRY NUNNERY",
  "name_abbreviation": "Nixon v. Nunnery",
  "decision_date": "1848-12",
  "docket_number": "",
  "first_page": "28",
  "last_page": "31",
  "citations": [
    {
      "type": "nominative",
      "cite": "9 Ired. 28"
    },
    {
      "type": "official",
      "cite": "31 N.C. 28"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
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  "last_updated": "2023-07-14T20:18:40.677102+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "LOUIS A. NIXON vs. HENRY NUNNERY."
    ],
    "opinions": [
      {
        "text": "Pearson, J.\nThere is no error in the proceedings of the Court below.\nAfter giving bond, and joining in an issue of fraud, it is t\u00f3o late to take exception to the writ of ca. sa. This is .settled by more than one case.\nThe defendant\u2019s counsel attempted to distinguish this case, by insisting that the ca. sa. was not simply irregular, but void ; that a void ca. sa. cannot confer jurisdiction, and that jurisdiction could not be acquired by express consent, much less by consent implied from a waiver or neglect to take exception in apt time.\nIf the Court derived its jurisdiction from the ca. sa,, there would be force in the argument. But jurisdiction of the subject matter is conferred by law ; the ca. sa. and bond are only the means or process to bring the party into Court. Any defect in process may be waived.\nThe argument proves too much, if the Court, when a ca. sa. is void, has no jurisdiction and the proceeding is a nullity. Debtors, w-ho have taken the oath and been discharged, may be arrested again. And should they rely upon the discharge, the answer will be, it is a nullity ; the ca. sa. was void, and the Court had no jurisdiction.\nThe next objection is, that the specification was too vague, as no particular land was set out. Specifications are not required by statute, but have been adopted by the Courts, to aid defendants and inform them to what to direct their proofs.\nIf a specification be not sufficiently certain, and a defendant, before issue joined, objects to it, and the Court should refuse to require it to be made certain, it would be error. But if a defendant does not object, and goes to trial, it is too late \u2014 he has taken his chance. The verdict cures the defect, for it must be taken for granted that evidence was offered which proved that the defendant had conveyed some particular land with an intent to defraud, otherwise a verdict could not have been rendered. The rule is that a verdict cures all omissions or defects, which must necessarily have been passed upon by the jury.\nA declaration in trespass, for breaking the plaintiff\u2019s close in the county of Wake is not too general, unless by special plea the plaintiff is forced to re-assign. So, trespass for an assault is not too general, if defendant will go to trial on the general issue.\nThe last objection is, that the verdict is too vague, because it does not describe any particular land, or find that the value is over ten dollars. The verdict is responsive to the issue. But it was argued that the land should have been identified, to enable the defendant to make a \u201cfull and fair disclosure.\u201d\nThe law punishes the defendant for his fraud by im. prisonment; it does not undertake to enable him, by a verdict, to make a \u201cfull and fair disclosure.\u201d When he applies a second time for the benefit of \u201cthe Act,\u201d he is to make a clear conscience, under the penal ty of a second imprisonment.\nIf the specification and verdict be certain, and the defendant makes a disclosure coming fully up to it, still if the plaintiff is able to show any other propert}', which has been fraudulently conveyed, the defendant will be again imprisoned, until he makes a \u201cfull and fair disclosure,\u201d which is a condition precedent to his discharge.\nThe other ground is equally untenable. The Act does, not allow a debtor to convey, with an intent to defraud, land or any other visible propertj' to the value of one cent. It provides, if the debtor has no visible estate, real or personal, and shall make oath, that he hath not the worth of ten dollars in any worldly substance, either in debts owing to him or otherwise, over and above his wearing apparel, &c., and that he hath not at any time sincei his imprisonment or before, directly or indirectly, sold or otherwise disposed of, any part of his real or personal estate, to defraud, &c.\nThis language need only to be read to be understood.'\nPub Curiam. Judgment affirmed.",
        "type": "majority",
        "author": "Pearson, J."
      }
    ],
    "attorneys": [
      "W. B. Wright and Husted, for the plaintiff.",
      "D. Reid, for the defendant."
    ],
    "corrections": "",
    "head_matter": "LOUIS A. NIXON vs. HENRY NUNNERY.\nIll a proceeding under the insolvent laws, when the debtor has been arrested on a ca. sa., it is too late for him, after giving bond and joining in an issue 6f fraud, to take exception to the writ of ca\u2022 sa.\nAlthough the ca. sa. may be void, yet the Court has jurisdiction of the subject matter, and objections to any part of the proceedings must be made in apt time.\nWhen the creditor alleges fraud, if his specification be not sufficiently certain and a defendant, before issue joined, objects to it, and the Court should refuse to make it certain, it would be error. But an objection to the specification is too late after issue joined. The verdict cures the defect.\nThe rule is that the verdict cures all omissions or defects, which must necessarily have been passed upon by the jury.\nA verdict is not too vague, when it responde to the issue.\nIt is not necessary that the land, alledged to have been fraudulently conveyed by the debtor, should be over the value of ten dollars. The law does not permit the debtor to convey, with intent to defraud, land, or any other visible property, no matter how small the value.\nAppeal from the Superior Court of Law of Cumberland County, at the Fall Term, 1847, his Honor Judge Caldwell presiding.\nThis was a proceeding upon a ca. sa. returned originally to the County Court, where the proceedings were ordered to be dismissed upon the motion of the defendant, and from this judgment an appeal was taken to the Superior Court. In this Court the following specifications on a suggestion of fraud were made by the plaintiff, to-wit, \u201cThat the defendant, Henry Nunnery, conceals and now is the owner of horses, cows, ton timber (several thousand feet.) four mules, notes, judgments and accounts, and that he is also the owner of land_or has an interest in land.\u201d\nThe following issues were submitted to the jury, (the two first not necessary to be inserted, as the jury found on them for the defendant;) 3rd. Did the defendant own land or any other interest therein at the time of issuing the ca. sa. ? 4th. Did the defendant convey any land with intent to defraud his creditors since the issuing of the ca. sa. ? 5th. Did the defendant convey any land with intent to hinder, defraud or delay the plaintiff in this aetion, since the issuing of the ca. sa.?\nThe jury found the 3rd, 4th and 5th issues in favor of the plaintiff: that is to say, that the defendant did own land, and did convey land with intent to defraud his creditors since the issuing of the ca. sa., and they further found that the defendant did convey land with intent to hinder, delay and defi\u2019aud the plaintiff in this action, since the issuing of the ca. sa.\nUpon the trial the defendant moved to quash the proceedings upon the ground that the ca. sa. was void. The Court being of opinion that the defendant had waived any irregularity, by joining in the issue tendered by the plaintiff, refused the motion to quash ; and for the further reason that the motion to dismiss had been heretofore adjudicated in this Court. Upon the charge of the Court, the jury returned a verdict in favor of the plaintiff. The defendant then resisted the judgment upon the ground that the finding of the jury was too general and indefinite. The Court overruled the objection, and gave judgment that the defendant be imprisoned, &c. From this judgment, the defendant appealed to the Supreme Court.\nW. B. Wright and Husted, for the plaintiff.\nD. Reid, for the defendant."
  },
  "file_name": "0028-01",
  "first_page_order": 36,
  "last_page_order": 39
}