Wood Hathaway v. . Harrell

74 N.C. 338

• Court: Supreme Court of North Carolina
• Decided: January 5, 1876
• Status: Published

Opinion

ByNüm, J.

The affidavit filed did not warrant the order of arrest. The distinction was taken in Hughes v. Person, 62 N. C. Rep., 548, between things done and things which the party believes are about t@ be done, and this distinction wa& reaffirmed in Clark v. Clark, 64 N. C. Rep., 150. It was therefore necessary for the plaintiffs, in their affidavit, to have set forth the grounds of their belief that the defendant was “ about to remove from the State,” in order that tire court might judge the reasonableness thereof. Wilson v. Barnhill, 64 N. C. Rep., 121. The court refused to vacate the order of arrest; why, then, afterwards submit the same matter to the revision of a jury? The question of the sufficiency of the affidavit was one of law addressed to the court alone.

There is error.

Per Curiam. Judgment reversed and order of arrest vacated.