Clark v. . Clark

Supreme Court of North Carolina

Clark v. . Clark

64 N.C. 150

CourtSupreme Court of North Carolina

DecidedJanuary 5, 1870

StatusPublished

Cited by11 cases

This text of 64 N.C. 150 (Clark v. . Clark) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Clark v. . Clark, 64 N.C. 150 (N.C. 1870).

Pincite

Opinion

Pearson, C. J.

Passing by the objection that the Judge could not entertain a motion to vacate the order for an attachment of property, upon a notice returnable before the Court — that is, the Clerk, and admitting the first affidavit to be insufficient to support the warrant of attachment, upon the distinction taken between a thing done, and a thing which the party fears and believes is about to be done, Hughes v. Person, 63 N. C. R. 548: We think his Honor erred in not allowing the plaintiff to have the benefit of his additional affidavit. It sets out fully the grounds on which he believed that the defendant was about to dispose of his property, in order to defraud his creditors, and particularly, to prevent the plaintiff from collecting his debt, which in a g-eneral sense, is expressed by the words ’‘to defraud cred-tors.

If the defendant had put the question on the insufficiency ■of the first affidavit, the distinction taken in Hughes v. Person, supra, would have supported the objection; unless the .allegation of the plaintiff that he was afraid to set out specifically the ground of his belief, because of the general ■character of the defendant as a violent and lawless man, could he taken as sufficient to make an exception.

But the defendant, not content with filing an answer to the complaint, also files an affidavit in reply to the affidavit on which the warrant of attachment issued. This let in the -additional affidavit of the plaintiff, which cures any omission in the affidavit of the plaintiff: C. O. P. sec. 96.

In proceedings of this nature, a party, aided by the advice ■of counsel learned in the .law, is left to make the move which he thinks best, and if his move gives to his adversary *152 a right to make another move, it belongs not to the Court to take sides, and, by ruling out the last two moves, put the matter upon the sufficiency of the first affidavit. “Pair play” is a rule of the common law, and when one takes his chance, he must abide by the result.

There is error. This will be certified.

Per Curiam. ’ Error.

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Pearson, C. J.

Passing by the objection that the Judge could not entertain a motion to vacate the order for an attachment of property, upon a notice returnable before the Court — that is, the Clerk, and admitting the first affidavit to be insufficient to support the warrant of attachment, upon the distinction taken between a thing done, and a thing which the party fears and believes is about to be done, Hughes v. Person, 63 N. C. R. 548: We think his Honor erred in not allowing the plaintiff to have the benefit of his additional affidavit. It sets out fully the grounds on which he believed that the defendant was about to dispose of his property, in order to defraud his creditors, and particularly, to prevent the plaintiff from collecting his debt, which in a g-eneral sense, is expressed by the words ’‘to defraud cred-tors.

If the defendant had put the question on the insufficiency ■of the first affidavit, the distinction taken in Hughes v. Person, supra, would have supported the objection; unless the .allegation of the plaintiff that he was afraid to set out specifically the ground of his belief, because of the general ■character of the defendant as a violent and lawless man, could he taken as sufficient to make an exception.

But the defendant, not content with filing an answer to the complaint, also files an affidavit in reply to the affidavit on which the warrant of attachment issued. This let in the -additional affidavit of the plaintiff, which cures any omission in the affidavit of the plaintiff: C. O. P. sec. 96.

In proceedings of this nature, a party, aided by the advice ■of counsel learned in the .law, is left to make the move which he thinks best, and if his move gives to his adversary *152 a right to make another move, it belongs not to the Court to take sides, and, by ruling out the last two moves, put the matter upon the sufficiency of the first affidavit. “Pair play” is a rule of the common law, and when one takes his chance, he must abide by the result.

There is error. This will be certified.

Per Curiam. ’ Error.

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Bluebook (online)

64 N.C. 150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-clark-nc-1870.

Opinion

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