Judd v. Crawford Gold Mining Co.

27 S.E. 81, 120 N.C. 397

• Court: Supreme Court of North Carolina
• Decided: February 5, 1897
• Status: Published

Opinion

Clabe, J.:

The attachment law was materially amended by the Code Commission, and under Section 847 of The Gode “an attachment now lies for unliquidated damages arising out of breach of contract” or (under Acts, 1893, Ch. 77) for injury to real as well as personal property. Long v. Insurance Co., 114, 465, 470; Gas Co. v. Construction Co., 113 N. C., 549.

The affidavit for attachment was, however, insufficient ,on the second ground assigned in the motion to vacate. When the affidavit is that the defendants are “about to assign or dispose of their property with intent to defraud the plaintiffs,’' that being not the assertion of a fact, but necessarily of a belief merely, the grounds'upon which such belief is founded must be set out that the court may adjudge if they are sufficient. Hughes v. Person, 63 N. C., 548; Gashine v. Baer, 64 N. C., 108; Clark v. Clark, Ibid, 150; Penniman v. Daniel, 90 N. C., 154. In an affidavit for arrest (where the requirements are very similar to those for an attachment) there is the same distinction between alleging things done and those about to be done. Wood v. Harrell, 74 N. C., 338; Wilson v. Barnhill, 64 N. C., 121; Peebles v. Foote, 83 N. C., 102. The same distinction obtains in applications for the appointment of receivers. Hanna v. Hanna, 89 N. C., 68. An appeal lies from the refusal to dismiss an attachment or arrest. Sheldon v. Kivett, 110 N. C., 408; Fertilizer Co. v. Grubbs, 114 N. C., 470. Error.