Wilson v. . Barnhill

64 N.C. 121

• Court: Supreme Court of North Carolina
• Decided: January 5, 1870
• Status: Published

Opinion

Pearson, C. J.

The affidavit upon which the warrant of arrest issued, was not sufficient-to authorize it.

It sets out merely that the defendant Barnhill “ was about to leave the State.” This may be said of every man who is about to take a trip South; or every merchant who is going to the North to buy goods. The affidavit must set out that the party is about to leave the State, with an intent to defraud his creditors, as the affiant believes, — and the grounds of his belief, so as to show some probable cause.

If the defendant had filed a counter affidavit, that would have opened the way for affidavit in reply on the part of the plaintiff; Clark v. Clark, at this Term. But as no affidavit was filed by the defendant, the motion rested on the insufficiency of the affidavit on which the warrant of arrest issued.

The leave asked, to amend by fifing an additional affidavit, was matter of discretion, and its refusal cannot be received in this Court.

After the defendant was discharged for the insufficiency ot the affidavit, on which the warrant of arrest issued, we can see no reason why the plaintiff, if so advised, could not have applied instantly for a second warrant of arrest based on the second affidavit, which sets ont sufficient ground.

There is no, error.

Pee Cueiam. Judgment affirmed.