Judd v. Crawford Gold Mining Co.

27 S.E. 81 | N.C. | 1897

The attachment law was materially amended by the Code Commission, and under section 347 of The Code "an attachment now lies for unliquidated damages arising out of breach of contract" or (under Acts 1893, chap. 77) for injury to real as well as personal property. Long v. Ins. Co.,114 N.C. 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, ib., 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 aboutto 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.

Cited: Finch v. Slater, 152 N.C. 156; Mitchell v. Lumber Co.,169 N.C. 398.

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