McGilvery v. Morehead

2 Cal. 607

• Court: California Supreme Court
• Decided: October 15, 1852
• Status: Published

Opinion

Heydehteldt, Justice,

delivered the opinion of the Court; Murray, Chief Justice, concurred.

Appeal from an order of the District Court discharging the defendant from arrest.

The act which allows a party to be arrested in a civil case, requires the affidavit to disclose that a sufficient cause of action exists, and that the case is one of those for which the remedy of arrest is provided.

It is well settled, that the facts necessary to be shown must appear by the positive averments of the affidavit; and it is insufficent to refer to the complaint or to any other paper to show what the affidavit ought itself to disclose, although it is positively averred that such complaint or paper is true.

When a party is once arrested and discharged, he cannot be arrested again in the same action. It is always presumed, that the plaintiff in his affidavit for arrest has stated his case as fully as he can to effect his object.

A different rule might not only lead to harassing arrests, but if new or amended affidavits were allowed at pleasure, it would open a wide door to perjury.

Judgment affirmed.