Brogden v. . Privett

67 N.C. 45

• Court: Supreme Court of North Carolina
• Decided: June 5, 1872
• Status: Published

Opinion

Reade, J.

The only question is as to the sufficiency of the affidavit for suing out the attachment. The Act of 1868-69, ch. 117, secures to a laborer alien on the crop which he labors to make, and also upon the land, &c., upon which the crop is made; and^'forbids the employer “ to remove the crop,” &c., “ without the,.permission, or, with intent to defraud the laborer of his lien.” And it gives the laborer a remedy by attachment when such removal is attempted. The affidavit for the attachment in this, case sets' forth that the defendant “ has removed and is removing and disposing of the cotton crop,” &e., without regard to the lien,” &c. There is no allegation that the removal is “ with the intent to defraud the laborer,” and, therefore, in view of the fact that the usual way for a farmer to raise money to pay his laborers is by selling his crop, it ought not to be presumed, but must be averred, that the removal is with a fraudulent intent. It is insisted, however, that the words of the statute are in the alternative, “ without his permission, or, with intent to defraud.” That is true; but still it is not necessary for us to decide whether “ or ” ought not to be construed and, because the affidavit does not use either alternative in the language of the statute; but substitutes his own language, “ without regard to the lien,” &e. We are not informed why the plaintiff evaded the language of the statute; and we are of the opinion that to favor his experiment would be an inconvenient and dangerous construction of the statute.

There is no error.

Pee Curiam. Judgment affirmed.