People v. Burke — 2 Edm. Sel. Cas. 10

Majority

p. 10

ERIE COUNTY OYER AND TERMINER.

July, 1848.

Before Edmonds, Justice, and the county judges.

The People v. Michael Burke.

Headnote

What is removing property out of a county by a debtor that will constitute the offense a misdemeanor under section twenty-six of the act to abolish imprisonment for debt, passed in 1831.

The defendant was indicted for a misdemeanor.

He had been sued in an action of trover before a justice of

p. 11

the peace, in Buffalo, and, after a trial, judgment had been rendered against him. On the rendition of the judgment, the immediate issuing of execution was demanded. He requested time to obtain security to stay execution, which was granted to brm, and he left the office of the justice. Instead of using the time for that purpose, he proceeded at once to take a horse that he owned, across the ¡Niagara river, into Canada, so that when, a few hours afterward, an execution was issued, the horse was beyond its reach; and to the constable, who had the process, he claimed that the property being his, he had a right to do with it what he pleased, and he so claimed on this trial.

charged the jury that the rule that a man had a right to do what he pleased with his property, was subject to many qualifications, and one of those was contained in the 26th section of the act of 1831, to abolish imprisonment for debt, which enacted that any person who should remove off of his property out of any county, with intent to prevent the same from being levied on by an execution, should, be deemed guilty of a misdemeanor.

It being undisputed that the horse had been removed out of the county of Erie, by the defendant, if the jury should be convinced that that had been done for the purpose of preventing its being levied on by any execution, they would find him guilty.

He was convicted, and when brought up for sentence he pleaded, as his excuse, that he did not know there was such a law; he had thought it was a free country when he came to it, but he didn’t think there was much freedom in it with such laws.