74 N.C. 338 | N.C. | 1876
"J. R. B. Hathaway makes oath:
"1. That he is a member of the firm of Wood Hathaway, composed, as above stated, and doing business in Edenton, county aforesaid. *261
"2. That Thos. J. Harrell is indebted to the said firm by contract, with interest to this date, in the sum of $85.54.
"3. That the said Thomas J. Harrell is about to remove from the State of North Carolina to become a resident of the State of Virginia."
Upon the filing of this affidavit, a capias was issued for the arrest of the defendant.
On the ___ day of ___, 1874, judgment was rendered in the Justice's Court in favor of the plaintiff, from which judgment the defendant appealed to the Superior Court.
When the case was called in the Superior Court, the defendant moved the court to vacate the order of arrest, because of the insufficiency of the affidavit.
After argument, the motion was overruled, and it was submitted to the jury to decide whether the facts, stated in the affidavit of the plaintiff, were true. The jury found by their verdict that the defendant was about to remove from the State, whereupon the court rendered judgment in favor of the plaintiff. From which judgment the defendant appealed.
The affidavit filed did not warrant the order of arrest. The distinction was taken in Hughes v. Person,
There is error.
PER CURIAM. Judgment reversed and order of arrest vacated.
Cited: Adrian v. Jackson,