#### H. A. PADGETT v. GROVER C. LONG et al.

(Filed 19 September, 1945.)

1. Statutes § 5cl—

One who predicates his cause of action on a statute, where no such right existed at common law, must bring himself within its provisions.

2. Homestead and Personal Property Exemptions §§ 1, 10—

In a suit to recover damages (G. S., 95-75) for violation of the provisions of G. S., 95-73, an allegation, that the forbidden purpose of the statute was accomplished by instituting in the foreign state an action, suit or proceeding for the attachment or garnishment of the debtor’s earnings in the hands of his employer, would seem to be an essential element of the cause of action. An allegation, that the debtor was threatened with attachment or garnishment of his wages and was forced to pay the foreign judgment in order to avoid same, is not sufficient.

3. Same—

The resident creditor is not forbidden (G. S., 95-73) to send his claim out of the State for collection by suit or otherwise, provided no effort is made, in the foreign state by attachment or garnishment, to deprive the resident debtor of his personal earnings and property exempt from application to the payment of his debts under the laws of this State.

4. Pleadings § 13 *4 —

A demurrer admits the truth of factual averments well stated and relevant inferences of fact properly cleducible therefrom, but it takes no account of legal inferences or conclusions of law asserted by the pleader.

Appeal by plaintiff from *Rousseau, J.,*at March Term, 1945, of MADISON.

*393Civil action to recover damages for violation of tbe provisions of G. S., 95-73.

For bis cause of action, tbe plaintiff alleges :

1. Tbat plaintiff is a resident wage-earner or salaried employee of tbe Southern Eailway Company, a corporation engaged in interstate business, and bas for tbe past several years resided witb bis family in tbe town of Hot Springs, Madison County, tbis State.

2. Tbat tbe defendants are residents of tbe town of Hot Springs and conduct therein a mercantile business under tbe name of Clover Leaf Store.

3. Tbat plaintiff and defendants were at all times herein mentioned under tbe jurisdiction of tbe courts of tbis State.

4. Tbat on or about 4 June, 1943, tbe defendants, having a book account against tbe plaintiff, sent tbe same to an attorney in Tennessee and bad suit brought thereon while plaintiff was temporarily in said State working witb a bridge construction crew as an employee of tbe Southern Eailway Company, and obtained judgment against tbe plaintiff in a justice's court, “which tbis plaintiff was forced to pay in order to avoid an attachment or garnishment of bis wages.”

5. Tbat it was tbe purpose and intention of tbe defendants, by tbe institution of tbe aforesaid suit in Tennessee, to deprive tbe plaintiff of bis legal exemptions as a resident of tbe State of North Carolina.

6. Tbat tbe defendants brought suit against the plaintiff in tbe State of Tennessee and bad process served upon him while be was temporarily within tbat State, “and thereupon threatened to attach or garnishee plaintiff’s wages.”

Wherefore plaintiff demands “tbe full amount of tbe debt thus collected” (G. S., 95-75) and damages.

Demurrer interposed on the ground tbat tbe complaint does not state facts sufficient to constitute a cause of action. Demurrer sustained. Plaintiff appeals, assigning error.

*James E. Rector for plaintiff, appellant.*

*Guy V. Roberts and Jones, Ward •& Jones for defendants, appellees.*

Stacy, C. J.

Tbe statute on which tbe plaintiff predicates bis cause of action, G. S., 95-73, forbids any resident creditor of a resident wage-earner or other salaried employee of a railway corporation or other employer engaged in interstate business, to send bis book account or other contract demand out of tbe State, assign or transfer it for value or otherwise, witb intent thereby to deprive such debtor of bis personal earnings and property exempt from application to tbe payment of bis debts under *394the laws of this State, “by instituting or causing to be instituted thereon against such debtor, in any court outside of this State, any action, suit or proceeding for the attachment or garnishment of such debtor’s earnings in the hands of his employer, when such creditor and debtor and the railway corporation, . . . firm or individual owing the wages or salary intended to be reached are under the jurisdiction of the courts of this State.”

It will be noted that the right which the plaintiff seeks to enforce is statutory. No such right existed at common law. It is essential therefore that the cause of action be laid within the terms of the statute. 1 Am. Jur., 410. One who predicates his cause of action on a statute must bring himself within its provisions. *Chicago & E. R. Co. v. Biddinger,*63 Ind. App., 30, 113 N. E., 1027. See *Moose v. Barrett,*223 N. C., 524, 27 S. E. (2d), 532. “Where a right is statutory, the claimant cannot recover unless he brings himself within the terms of the statute”— 2nd headnote, *United States v. Perryman,*100 U. S., 235, 25 L. Ed., 645.

Plaintiff alleges that he was threatened with attachment or garnishment of his wages and was forced to pay the Tennessee judgment “in order to avoid an attachment or garnishment of his wages,” but it is not alleged that the forbidden purpose was accomplished by instituting in the foreign state an action, suit or proceeding “for the attachment or garnishment of such debtor’s earnings in the hands of his employer.” This would seem to be an essential element of the cause of action created by the statute. Its omission is fatal to the case.

A resident creditor is not forbidden to send his claim out of the State for collection by suit or otherwise, provided no effort is made in the foreign state by attachment or garnishment to deprive the resident debtor of his personal earnings and property exempt from application to the payment of his debts under the laws of this State. The statute inveighs against the institution of foreign proceedings in attachment or garnishment, in the circumstances described, with intent thereby to reach the wages or salary of the wage-earner in the hands of his employer, when the creditor, the wage-earner and his employer are all under the jurisdiction of the courts of this State. The present complaint falls short of an allegation of this kind.

True, it is alleged that by sending their book account to an attorney in Tennessee and having it reduced to judgment in the courts of that State, the defendants thereby intended to deprive the plaintiff of his legal exemptions as a resident of North Carolina. This, however, is only the conclusion of the pleader. It is not supported by the requisite statutory allegations of fact. A demurrer admits the truth of factual averments well stated and relevant inferences of fact properly deducible therefrom, but it takes no account of legal inferences or conclusions of law asserted *395by the pleader. *Ins. Co. v. Stadiem,*223 N. C., 49, 25 S. E. (2d), 202; *Leonard v. Maxwell, Comr.,*216 N. C., 89, 3 S. E. (2d), 316; *Harris v. R. R.,*220 N. C., 698, 18 S. E. (2d), 204.

The demurrer was properly sustained.

Affirmed.