The Caucasian. (Clinton, N.C.) 188?-1913, 1895-04-18
the aSSI-RyEkT Law
i,'oa,aasi frau second rs-e.

i'on;iunsi frsul s.coni T1s.-s.'
iion-, rtr. only =, Ia that person. hi-
heirs, ttc. {" b- utterly Void aud Il uu
effect Before the enact ri-ut oI thar
statute q Ma ncrvs-aaN e. iEAoi the
aid oi a court 81 equity tu have decd
declared void Tor iradd, aud. u here
by that or any other statute deeds e.
pronounced void a against creditors.
ia order to secure n formal declaration
Gi their InNalidits the moStn. part,
must ask relief that wou!d hAs, been
administered formerly solely la 4 court
of equity.
Ii d"-- not appear that the CT, dit"r
flrthing ha~ sued upon The not. du-
him. or that, IL h- had obtained .udg-
m.nt and issued execution there, u. hr
could not lsaNe realized hi- debt hy the
sale of Other prop rty. 1 nl.>> th.. .,r,.,,-
TOR has the right, upon the state uf
facts presented, 10 demand a formal
declaration 81 tie rourt that the mort
gage - void. uu cau>, of action j
stated. mp, II which lac c..n demand ana
judgment whatever. Switzerland -
Harper, - y. G. 2Nu. far,hin- has
show ~" -ha low of a claim - either
the specific personal property ,r the
land covered by the mortgage to Car
rington, and there j. not ia. slightest
ground therefore Tor invoking the aid
oi the court Ia remove a cloud from
property To which hc has shown no APP
parent right or title. Bruwnin. ~
Lavender, lOi y. g.. 60. rcacock "
Niott. Ibid lJI. "A cause of action T.
generally held 10 be a union oi the
right of the plaintiff and it, infringe
ment by he defendant" | Enc. at ~
and Pr, -. llG. The tw" elements ar,
the right of The plaintiff and omission
of duty or wrong on TIA. part of the de-
PENDANT. Hayes ". ClinkScales . =. 4.
III. Here. the only right shown 10 D..
IN Farthing. in whose favor an attempt
II made Ia state cause of action II any
exists, l. that Ia sue for and rrcuN rr
the sum of one hundred dollars due
him but there j. an utter failure Ia in-
dictate how the mortgage, without
furt her explanation, interfcrcs with
that right. There must be an allcga-
ton of a breach or Of a neglect of
duty and damage resulting. in order
to properly constitute the suit in court
Cooley. j. in Post ". tampan. II Mich.
90. "rhe Codes of civil procedure ere
ate no new causes of action. Rights are
entirely Independent of remedies.
w ildt'Nft was IL vi d'llbil AT INV
or "A ground of relief in equity before
Codes, is now remediablc in a civil
action, and whatever was remedilc>>
before Is now remediless under the
Codes. ! Enc. of III. and Pr. y. 10"
There must be some limit To he eX-
ercise of jurisdiction under section BOZ
II is we'll settled that a respectful letter.
from the learned members Of the bar.
" no represent the parties To this pro-
Cetding, asking the court Ia advise
Them a. TO some controversy, that had
not, but mi ht in the near future arise
would give the subject matter of the
communication no standing in the
superior court, or by appeal here.
| am at a loss. To know how the line
can be drawn so "a 10 guide tie legal
profession and protect the court against
being forced to spend their time in de
| Gliding speculative questions. b-tw.cn
| the rnie that the statement of facts
sufficient to constitute a cause of action
shall be regarded as an essential pre-
requisite to the consideration of a con-
| troyersy submitted without action, and
! the loose practice of allowing aflidayiis
suggesting that a question of vital in
trrest to the public is about to arise.
and requesting the court torelieve lac
parties { the trouble and expense al
proceeding in the prescribed way. and
10 give II "A proper status in court. !
cannot concur with my brethren in the
view that the letter of advice To the
head of a coordinate branch of
the government Ola y. 4. ?23
is precedent for entertaiuiu.
and deciding this case. There
the court followed former precedent
in nj ia. dana ri IN
: the Legislature) about 4 matter that
confronted il at the moment. and ia.
vOlved a grave constitutional question
upon which hat department was Gale,
upon 10 act Immediately. There, thu
. court gave advice in order To point on
the line of duty. which was prescribe,
by the constitution, and il was not nee
; essary To render a judgment. Here. w
must either render judgment or dis
miss the case for want of jurisdiction
there i no middle ground. If we hay
, no jurisdiction. as the modified opin
, ion of the court seems To concede. thel
our Judgment j. a nullity. IL il familia
: learning that IA Judgment, where tn
; court has no jurisdiction. is not concIu
2 sIye. 1t seems to me that, where II j
l conceded that a case Is cOrdm nan jn
1 dire, the court can render no jud gmeni
and il is manifestly our duty to dismis.
4 unless We mean TO hold that any tw
!, private citizens haye..the same right I
. ask for advice about their difference
that the Legislature or the Governu
;. has to invoke our aid in acting upon
l. grave constitutional question, upO
s which immediate action is inevitable
l. To this proposition | cannot give III
s assent, and in my view of the case
\ cannot concur with my brethren Will
=, out asserting to it.
? The letter to the Governor which
= referred to. was not an ADJUDICATION
to the rights of the judicial officer
whose terms We're i'm Question. 81
feeling that they would yoluntaril
accept the advice as decisive. the coul
simply endeavored to exhibit prop,
!. appreciation of the rights Of the iudg
r. and at the same time to show Il
e, courtesy to the Chief Executive of Il
,e State that had been considered d,
At both departments when similar r
- quests had been heretofore made. Il
. the Judgment of the court below til
- Jones' mortgage is not void, is as | "a
derstand the opinion of the court. X
re undisturbed and is allowed to conclu
I'd the parties, though the court has
I'd jurisdiction to try it.
is Whatever may be the magnitude
n the question involved, | deem it II
al duty to refrain from the expression
+. an opinion upon it, just as it would
- proper to decline to respond to wr
Is ten request accompanied by a soien
q, affidavit and sent in an informal W
by some other highly respectable eli
zen Of the State. ! therefore disse
from the opinion of majority of {
court that there is a properly constit
.Ol ted case before US.