Editor’s Note.

Former G.S. 23-1 pertained to debts mature on execution of assignment; no preferences. Former G.S. 23-2 pertained to trustee to file schedule of property. Former G.S. 23-3 pertained to trustee to recover property conveyed fraudulently or in preference. Former G.S. 23-4 pertained to substitute for incompetent trustee appointed in special proceeding. Former G.S. 23-5 pertained to insolvent trustee removed unless bond given; substitute appointed. Former G.S. 23-6 pertained to trustee removed on petition of creditors; substitute appointed. Former G.S. 23-7 pertained to substituted trustee to give bond. Former G.S. 23-8 pertained to only perishable property sold within ten days of registration. Former G.S. 23-9 pertained to creditors to file verified claims with clerk; false swearing misdemeanor. Former G.S. 23-1 0 pertained to priority of payments by trustee. Former G.S. 23-11 pertained to trustee to account quarterly; final account in twelve months. Former G.S. 23-12 pertained to Trustee violating duties guilty of misdemeanor.

Editor’s Note.

Former G.S. 23-13 pertained to petition; schedule; inventory; affidavit. Former G.S. 23-14 pertained to clerk to give notice of petition. Former G.S. 23-15 pertained to order of discharge and appointment of trustee. Former G.S. 23-16 pertained to terms and effect of order of discharge. Former G.S. 23-17 pertained to suggestion of fraud by opposing creditor.

CASE NOTES

Constitutionality. —

This section does not contravene the constitutional provision in regard to homestead and personal property exemptions, as the prisoner can discharge himself from custody by paying the fine and costs or by complying with the provisions of this article and taking the oath prescribed. State v. Williams, 97 N.C. 414 , 2 S.E. 370, 1887 N.C. LEXIS 178 (1887).

Liberal Construction. —

In Wood v. Wood, 61 N.C. 538 , 1868 N.C. LEXIS 65 (1868) it is stated that chapter 59 of the Revised Code the provisions of which are contained in this Article has always received a liberal interpretation.

Debtor Must Follow Provisions. —

When a person is taken by authority of an execution against his person by virtue of the provisions of G.S. 1-311 , he can be discharged from imprisonment only by payment or by giving notice and surrender of all his property in excess of $50.00 as provided in this section and G.S. 23-30 through 23-38. Allred v. Graves, 261 N.C. 31 , 134 S.E.2d 186, 1964 N.C. LEXIS 435 (1964).

Editor’s Note.

Section 153-194, referred to in this section, was transferred to G.S. 162-45 by Session Laws 1973, c. 822, s. 3. The section was repealed by Session Laws 1977, c. 711, s. 33.

Legal Periodicals.

For note on imprisonment of an indigent at low per diem rate for failure to pay fine, see 6 Wake Forest Intra. L. Rev. 509 (1970).

CASE NOTES

Purpose of Section. —

This section was manifestly intended to be construed as permitting a defendant convicted in a criminal proceeding, or found to be the father of an illegitimate child, to file a petition before the clerk designating the time when he wished to apply for a discharge. State v. Parsons, 115 N.C. 730 , 20 S.E. 511, 1894 N.C. LEXIS 302 (1894).

Person Committed for Fine and Costs May Be Discharged. —

One committed for the fine and costs of a criminal prosecution, after remaining in jail twenty days, may be discharged upon complying with provisions of G.S. 23-25 . State v. Davis, 82 N.C. 610 , 1880 N.C. LEXIS 314 (1880).

Where Prisoner Was Found Guilty on Three Indictments. —

There were three indictments against a prisoner to one of which he pleaded guilty, and judgment was suspended on the payment of costs, and he was found guilty on the other two, on one of which he was sentenced to imprisonment for ten days. After remaining in jail for the term of his imprisonment and twenty days additional, the prisoner took the oath prescribed and applied for his discharge; it was held, that he was entitled to his discharge in all three cases. State v. McNeely, 92 N.C. 829 , 1885 N.C. LEXIS 303 (1885).

CASE NOTES

Insolvent’s Application Is Proceeding in Cause in Which Convicted. —

The application of an insolvent confined for the nonpayment of costs is a proceeding in the cause in which he was convicted, and should be made by petition to the court wherein the judgment against him was entered. State v. Miller, 97 N.C. 451 , 1 S.E. 776, 1887 N.C. LEXIS 189 (1887).

Prisoner May Appeal to Judge If Clerk Refuses to Give Oath. —

If the clerk should refuse to allow the prisoner to take the oath, the remedy is by an appeal to the judge holding the courts of that district. State v. Miller, 97 N.C. 451 , 1 S.E. 776, 1887 N.C. LEXIS 189 (1887) (intimating that release of prisoner on writ of habeas corpus by judge of adjoining district is irregular) .

Twenty-Day Provision Is Mandatory. —

Whether a defendant has property or not, he must remain in jail the twenty days, or pay the fine and costs, since the officers could not waive the imprisonment, nor had the judge the power to dispense with it. State v. Davis, 82 N.C. 610 , 1880 N.C. LEXIS 314 (1880).

Neither the judge nor solicitor has the right to allow a defendant to take the insolvent’s oath and obtain his discharge without remaining in prison for twenty days. State v. Bryan, 83 N.C. 611 , 1880 N.C. LEXIS 131 (1880).

CASE NOTES

Construed with G.S. 1-417 and G.S. 1-419 . —

This section should be construed with G.S. 1-417 and G.S. 1-419 , and, so construed, the remedies given by this section are in addition to those given by the other sections mentioned. Edward v. Sorrell, 150 N.C. 712 , 64 S.E. 898, 1909 N.C. LEXIS 135 (1909).

Persons Within Scope of Section. —

The terms of this section are as broad and sweeping as they well can be. They do not, in any view of them as to the purpose intended, imply limitation or discrimination. They plainly embrace “every person” taken or charged to be arrested by virtue of “any order of arrest,” not specially for a tort, or for fraud, or other particular cause of action as to which a person may be arrested, but for any cause of action, no matter what may be its nature, if the person is arrested in a case wherein he may lawfully be so arrested. They, in plain, strong terms, embrace any such arrest made or ordered to be made in any action whatever — that is, an action in which a person — a party — may be so arrested. Burgwyn v. Hall, 108 N.C. 489 , 13 S.E. 222, 1891 N.C. LEXIS 98 (1891).

The provisions of this section are broad and strong, and plainly extend to and embrace every person who may be arrested by virtue of an order of arrest issued pursuant to the provisions of G.S. 1-410 , and also extend to and embrace every person who has been seized by virtue of an execution against his person by authority of the provisions of G.S. 1-311 . Allred v. Graves, 261 N.C. 31 , 134 S.E.2d 186, 1964 N.C. LEXIS 435 (1964).

The benefits of this section extend as well to those arrested for torts as for debt, and the debt growing out of one is no more a debt and no more entitled to an extraordinary process for its collection than the other. Burgwyn v. Hall, 108 N.C. 489 , 13 S.E. 222, 1891 N.C. LEXIS 98 (1891).

The provisions of this section extend to and embrace every person arrested or to be arrested in a civil action on account of any cause of action specified in G.S. 1-410 . Burgwyn v. Hall, 108 N.C. 489 , 13 S.E. 222, 1891 N.C. LEXIS 98 (1891).

Nonresidents Are Included. —

The benefits of the section are not confined to residents of this State. There is no provision in it, or any other statute, within our knowledge, that in terms or by reasonable implication declares that a nonresident shall not be discharged from arrest in a civil action, if he makes the complete surrender of his estate as prescribed. Burgwyn v. Hall, 108 N.C. 489 , 13 S.E. 222, 1891 N.C. LEXIS 98 (1891).

Discharge May Be Sought After Motion to Vacate Arrest Denied. —

Where a party is under arrest in a civil action and his motion to vacate the arrest has been denied, he may seek his discharge under the provisions of this section. Wingo v. Watson, 98 N.C. 482 , 4 S.E. 463, 1887 N.C. LEXIS 310 (1887).

But Exempt Property over $50 Must Be Surrendered. —

A judgment debtor against whose person execution has been issued cannot be discharged except by payment, or giving notice and surrender of all property in excess of $50, and the effect of the execution against the person is to deprive him of his homestead and his personal property exemption over and above $50. Oakley v. Lasater, 172 N.C. 96 , 89 S.E. 1063, 1916 N.C. LEXIS 241 (1916).

CASE NOTES

Persons Included. —

This section in the broadest terms embraces “every person taken or charged as in the preceding section specified.” Burgwyn v. Hall, 108 N.C. 489 , 13 S.E. 222, 1891 N.C. LEXIS 98 (1891).

Cause of Action Immaterial. —

The debtor is entitled to be discharged upon the honest surrender of his property in the way prescribed, whether the cause of action on account of which he was arrested was a fraudulent debt, or a tort, or of other nature as to which he might be arrested. Burgwyn v. Hall, 108 N.C. 489 , 13 S.E. 222, 1891 N.C. LEXIS 98 (1891).

CASE NOTES

Constitutionality. —

The 20-day notice requirement of this section is constitutionally deficient and may not be enforced. Grimes v. Miller, 429 F. Supp. 1350, 1977 U.S. Dist. LEXIS 16432 (M.D.N.C.), aff'd, 434 U.S. 978, 98 S. Ct. 600, 54 L. Ed. 2d 473, 1977 U.S. LEXIS 4208 (1977).

This section postpones unconscionably and unconstitutionally, as a violation of procedural due process, the right of one imprisoned to have his day in court. Grimes v. Miller, 429 F. Supp. 1350, 1977 U.S. Dist. LEXIS 16432 (M.D.N.C.), aff'd, 434 U.S. 978, 98 S. Ct. 600, 54 L. Ed. 2d 473, 1977 U.S. LEXIS 4208 (1977).

Reasonable Notice to Be Required Pending Legislative Correction of Constitutional Infirmity. —

See Grimes v. Miller, 429 F. Supp. 1350, 1977 U.S. Dist. LEXIS 16432 (M.D.N.C.), aff'd, 434 U.S. 978, 98 S. Ct. 600, 54 L. Ed. 2d 473, 1977 U.S. LEXIS 4208 (1977).

Only Creditors Notified Are Affected. —

The party arrested and seeking relief must notify the creditors or plaintiff at whose suit he is arrested, but he may or may not notify other creditors of his application to surrender his property and be discharged from arrest, and only such creditors as may be so notified will be affected by his discharge. Burgwyn v. Hall, 108 N.C. 489 , 13 S.E. 222, 1891 N.C. LEXIS 98 (1891).

CASE NOTES

Petitioner May Demand Oath and Jury Trial. —

A petitioner is entitled to insist that suggestions of fraud, made by a creditor, shall be verified by the oath of the creditor and tried by a jury; and it is error in a judge to decide upon such suggestions, without submitting them in an issue to a jury. Purvis v. Robinson & Co., 49 N.C. 96 , 1856 N.C. LEXIS 34 (1856). See also, State v. Carroll, 51 N.C. 458 , 1859 N.C. LEXIS 153 (1859).

CASE NOTES

Discharge Held Improper. —

Where a debtor arrested and imprisoned for fraud did not tender the oath required by G.S. 23-23 , nor surrender his homestead and personal property exemptions, nor file the petition, nor give the notice required by G.S. 23-32 , he was improperly discharged upon an affidavit that he had theretofore made an assignment of all his property for the benefit of creditors and that he was at the date of the affidavit insolvent and not worth more than the exemptions allowed him by law as set apart to him. Raisin Fertilizer Co. v. Grubbs, 114 N.C. 470 , 19 S.E. 597, 1894 N.C. LEXIS 92 (1894).

Proper Remedy to Secure Tort Damages. —

The proper remedy of the party seeking to establish and secure his damages for tort is to have a trustee appointed, under this section, to hold and distribute among creditors when and as soon as all debts are ascertained. Burgwyn v. Hall, 108 N.C. 489 , 13 S.E. 222, 1891 N.C. LEXIS 98 (1891).

CASE NOTES

The extreme sickness of the principal would excuse his nonappearance, and entitle him and his surety to a continuance if that appeared to the court. But where it was not made to appear, the court could not properly continue it. Buis v. Arnold, 53 N.C. 233 , 1860 N.C. LEXIS 210 (1860).

But Not Sickness of Surety. —

Under this section the sickness of the surety is no excuse for the default of the principal. Speight v. Wooten, 14 N.C. 327 , 1832 N.C. LEXIS 28 (1832).

CASE NOTES

This section only applies to cases where the defendant is in lawful custody and by virtue of an authority competent to order it. H.M. Houston & Co. v. Walsh, 79 N.C. 35 , 1878 N.C. LEXIS 10 (1878).

CASE NOTES

Must Surrender Property Fraudulently Conveyed. —

An insolvent debtor included in his schedule “all his interest in certain property assigned to S.C.” On an issue found, the jury found the deed assigning such property fraudulent. It was held that the debtor should be imprisoned until he should make a surrender of the whole of such property. Hutton v. Self, 28 N.C. 285 , 1846 N.C. LEXIS 49 (1846).

Not in Execution as to Other Creditor. —

A debtor convicted of fraudulent concealment of his effects, upon an issue between him and A, and ordered into custody thereupon, according to this section, is not in execution at the suit of B, another creditor, in whose case no such concealment was found or suggested. Folsom v. Gregory, 12 N.C. 233 , 1827 N.C. LEXIS 39 (1827).

Editor’s Note.

Session Laws 2020-75, s. 4, made the amendment of this section by Session Laws 2020-75, s. 3(c), effective January 1, 2021, and applicable to receiverships commenced on or after that date.

Effect of Amendments.

Session Laws 2020-75, s. 3(c), rewrote the section. For effective date and applicability, see editor’s note.

CASE NOTES

Discharge Under Section Distinguished from Release Under G.S. 23-32 . —

See Grimes v. Miller, 429 F. Supp. 1350, 1977 U.S. Dist. LEXIS 16432 (M.D.N.C.), aff'd, 434 U.S. 978, 98 S. Ct. 600, 54 L. Ed. 2d 473, 1977 U.S. LEXIS 4208 (1977).

Debt Is Not Discharged. —

The discharge of the principal, under the insolvent debtor’s law, is not a discharge of the debt. Norment v. Alexander, 32 N.C. 71 , 1849 N.C. LEXIS 50 (1849).

Protects against Those Notified. —

The discharge of an insolvent protects him from arrest by those creditors only who had notice of his intention to apply for a discharge. Crain v. Long, 14 N.C. 371 (1832); Norment v. Alexander, 32 N.C. 71 (1849); Rountree v. Waddill, 52 N.C. 309 (1859). See note to G.S. 23-32 .

CASE NOTES

Upon the suggestion of fraud an issue is raised which should be entered upon the trial docket of the superior court and stand for trial as other causes. State v. Parsons, 115 N.C. 730 , 20 S.E. 511, 1894 N.C. LEXIS 302 (1894).

Issue Can Be Made Up When Schedule Shows Deed of Trust. —

When one who applies to take the insolvent debtor’s oath, upon rendering a schedule, sets forth in his schedule that he has made a deed in trust of certain property to satisfy certain creditors, and surrenders all his interests in the property mentioned in such deed, it is still competent for the opposing creditor to have an issue made up whether the said deed is not fraudulent, and if found fraudulent by a jury, to cause the debtor to be imprisoned until he surrenders the property itself. Adams v. Alexander, 23 N.C. 501 , 1841 N.C. LEXIS 111 (1841).

When Jury Finds Deed Fraudulent, Debtor Is Imprisoned Until Property Surrendered. —

Where an insolvent debtor, in filing his schedule, only surrenders his interest in certain property, conveyed by a deed in trust, and the jury, upon an issue, finds the deed fraudulent, he must be imprisoned until he makes a surrender of the whole property so conveyed. Hutton v. Self, 28 N.C. 285 , 1846 N.C. LEXIS 49 (1846).

CASE NOTES

When Bond May Be Given. —

The insolvent may give bond during the pendency of and until the final determination of the proceedings. Howie v. Spittle, 156 N.C. 180 , 72 S.E. 207, 1911 N.C. LEXIS 155 (1911).

Sufficient Condition. —

A condition “to appear and claim the benefit of the act, etc., and not depart without leave,” is substantially the same as that prescribed by this section. Mooring v. James, 13 N.C. 254 , 1829 N.C. LEXIS 60 (1829).

Who Prepares Bond. —

Whether it is the duty of the officer or the defendant to prepare the bond to be given for the defendant’s appearance, quaere. Winslow v. Anderson, 20 N.C. 1 , 1838 N.C. LEXIS 40 (1838).

Day for Appearance Must Be Certain. —

The bond for the defendant’s appearance, under this section, is in the nature of process to compel an appearance, and the day stated in the condition for appearance must be certain. Winslow v. Anderson, 20 N.C. 1 , 1838 N.C. LEXIS 40 (1838).

Where Date in Bond Erroneous. —

Where a bond was conditioned for the defendant’s appearance at the next term of court to be held upon a stated day, and, at the next term which sat at a date earlier than that mentioned in the bond, the defendant did not appear, it was error to take a judgment against him and his surety for default since there was no default of appearance according to the bond. Winslow v. Anderson, 20 N.C. 1 , 1838 N.C. LEXIS 40 (1838).

Amount of Bond. —

A bond given under this section for the appearance of an insolvent to court is good if it is for double the original debt, exclusive of interest and costs, and judgment, on motion may be rendered on it. Williams v. Yarbrough, 13 N.C. 12 , 1828 N.C. LEXIS 73 (1828).

Defendant Cannot Object to Bond. —

A defendant who has given bond under this section cannot object to the informality of the bond and pray a discharge on account thereof. Page v. Winningham, 18 N.C. 113 , 1834 N.C. LEXIS 26 (1834).

Nor to Ca. Sa. While Released on Bond. —

Where a defendant gives bond under the insolvent act, and while he is at large by virtue thereof, he is not entitled to his discharge on account of the fact that the ca. sa. is voidable; nor can he move, under such circumstances, to quash the proceedings on that account. Bryan v. Brooks, 51 N.C. 580 , 1859 N.C. LEXIS 190 (1859).

Defendant Bound to Attend Every Term. —

The defendant in a ca. sa. bond given under this section is bound to attend at every term until the cause is finally disposed of. Arrington v. Bass, 14 N.C. 95 , 1831 N.C. LEXIS 68 (1831).

Condition Is Broken by Default After Continuance. —

Where the defendant in the ca. sa. appeared at the return day of the writ, and upon an issue being made up, the cause was continued, and afterwards the defendant made a default, it was held that the condition of the bond was broken and the plaintiff entitled to judgment. Mooring v. James, 13 N.C. 254 , 1829 N.C. LEXIS 60 (1829).

CASE NOTES

Right of Person Surrendered. —

A person who is surrendered in discharge of his bail is entitled to the benefit of this chapter for the relief of insolvent debtors. Smallwood v. Wood, 19 N.C. 356 , 1837 N.C. LEXIS 38 (1837).

Where Surrender to Be Made. —

Sureties to a ca. sa. bond, to protect themselves by a surrender of their principal, must make it in the court to which the ca. sa. is returnable, or to the sheriff of that county; where the writ issues to another county, a surrender to the sheriff of it is a nullity. Mooring v. James, 13 N.C. 254 , 1829 N.C. LEXIS 60 (1829).

Invalid Surrender. —

Where a prisoner was brought into open court by his bail, and it was announced, publicly, that he had surrendered, but was unknown to the sheriff, to the plaintiff, and to the plaintiff’s counsel, and he was a stranger to all present, except to the bail and the presiding judge, and upon being ordered in custody, he fled from the courtroom and escaped, without having been in the custody of the sheriff, it was held that these facts did not amount to a valid surrender. Rountree v. Waddill, 52 N.C. 309 , 1859 N.C. LEXIS 95 (1859).

Surrender Cannot Be Made After Judgment Against Surety. —

When the principal obligor in a bond is regularly called at court, and, failing to appear, judgment is rendered against him and his surety, the surety has no right ex debito justitiae to come in on a subsequent day of the term and have the judgment set aside, in order to allow him to make a surrender of his principal. Reynolds v. Boyd, 23 N.C. 106 , 1840 N.C. LEXIS 74 (1840).

CASE NOTES

Common-Law Provision. —

By the common law an imprisoned debtor was obliged to support himself, and, if unable to do so, was dependent upon the humanity of the jailer or of others. Veal v. Flake, 32 N.C. 417 , 1849 N.C. LEXIS 138 (1849).

Effect of Section. —

Where a man had been arrested and the issue had been continued from term to term, and his sureties had from time to time surrendered him and the issue had been decided against him and he had been committed to prison in all these cases, at the instance of the creditor, it was held that under this section the creditor was responsible to the jailer for his fees or allowance for the food furnished to the prisoner during the whole time he was confined in jail. Veal v. Flake, 32 N.C. 417 , 1849 N.C. LEXIS 138 (1849).

Where Prison Bounds Allowed. —

When a debtor is committed to prison, and is permitted to take the prison bounds, the jailer is not under any obligation, while he continues in the bounds, to furnish him provisions for his support, nor, of course, can the creditor, at whose suit he is confined, be compelled to reimburse the jailer for any sum so expended. Phillips v. Allen, 35 N.C. 10 , 1851 N.C. LEXIS 100 (1851).

Sheriff Cannot Bring Action. —

The action against the creditor for the jail fees of an insolvent debtor, given by this section to the jailer, cannot be maintained by the sheriff as the jailer’s principal. Bunting v. McIlhenny, 61 N.C. 579 , 1868 N.C. LEXIS 78 (1868).