Benedict, Hall Co. v. . Hall

76 N.C. 113

• Court: Supreme Court of North Carolina
• Decided: January 5, 1877
• Status: Published

Opinion

RodmaN, J.

We agree with the Probate Judge and with the Judge of the Superior Court, that the affidavit on rvhieh the order of arrest was made was defective in the two particulars pointed out by the Probate Judge.

A Notary Public is recognized by the universal law of ■civilized and commercial nations. But his powers are confined to the authentication of commercial papers and to the protesting of bills of exchange and the like.

The Act, Bat. Rev. ch. 76, is evidently confined to Notaries Public in North Carolina, and a Notary Public resident out of the State has no authority to take affidavits to be used in the Courts of this State.

If the defendant had moved to vacate the order of arrest for these defects, without filing counter affidavits, we think (that his motion should have been allowed.

But he filed counter affidavits and thus opened the door to the plaintiff to file affidavits supplemental to his original one, which were duly verified. The case was thus brought within the decision in Clark v. Clark, 64 N. C. 150.

The Judge was therefore in error in vacating the order of arrest for the reasons assigned by him. We have considered those reasons only.

Judgment reversed and case remanded to be proceeded in, &e.

Let this opinion be certified.

Per Curiam. Judgment reversed.