Brown, Daniel & Co. v. Hawkins

Pearson, C. J. The first affidavit is insufficient, but the amended affidavit comes fully up to the requirement of the statute. Hughes v. Person, 63 N. C., 548 It sets out facts and circumstances showing probable cause, and that in suing out *648 the attachment, the plaintiffs acted with hona fide, and under a just apprehension that the property was about to be “ put out' of the way.” The counter affidavit of the defendant, explains the circumstances, and removes the appearance of a fraudulent intent, in. respect to the defendant personally, but it leaves the very suspicious fact, that after night fall, the mules were clandestinely taken out of the town of Tarboro, and run off to a distance of some ten miles, when they were captured. Unexplained, there could be no satisfactory explanation, except by the affidavit of Wynne, the defendant’s agent. No reason is given for not filingpt. This leaves the case of the defendant under a cloud,, and he falls within the operation of the rule, facit per alimn facit per se, and is affected by the conduct of his agent Wynne,, and of his sub-agents, the two men who wrere running the-mules out of the County. These facts and circumstances would have been held sufficient under the old system of procedure, to defeat a motion to discharge a sequestration, on the principle, that where there is reasonable ground of doubt in regard to the merits of the con troversy, the property being in custodia legis, will be kept there, until the matter be decided. Under the C. C. P., the principle applies with greater force, for the defendant has it in his power, as of course, to obtain an order for the discharge of the property, by giving an undertaking to pay the judgment, in the event that the plaintiffs should succeed. Unless the defendant should be insolvent and unable to give the undertaking, there is no reason why this course should not have been adopted, and an action brought against the plaintiffs, for wrongfully and maliciously suing out the attachment, and thus the matter would have been put squarely before a jury for final decision, instead oí imposing on the Court the duty of hearing the matter upon affidavits, and passing on it, as a mere preliminary to the motion, which can have no-further effect. *649 It is a circumstance in favor of the defendant that no allegation of his insolvency is made. As he is solvent, and able to give the undertaking, he would, if well advised, have adopted the course indicated, without wasting time on the skirmishing-line. In regard to the amended affidavit, the facts are so obscurely set out on the record as to leave this Court in doubt as to the order in which the several movements were made. If the papers were before the Judge as a foundation for the motion to-discharge the attachment on the counter affidavits filed by defendant, then the case falls under Clarke v. Clarke, 64 N. C. 150. But if the papers were before the Judge, with a view of.allowing the plaintiff to amend the affidavit, we are of opinion that he had power to allow the amendment under C. C. P., sec 131. The criticism on the affidavit that it is vague and uncertain in that it avers that the defendant was about to assign, dispose of or secrete the property — whereas it ought to have specified distinctly one of these three modes by which the alleged fraudulent intent was to be accomplished — is not tenable. The statute puts the three modes in the alternative, and, in this respect, the affidavit is sufficiently definite by following the words of the statute; for it may be out of the power of the party to designate the precise mode. Such was-the construction put upon the statute in regard to stealing-slaves. The wmrds are, “ shall by stealing or seduction, or by force, deprive the owner of his slave, with intent,” &c., and it was held that the indictment need not specify any one of the three modes, but it was sufficiently certain to follow the words of the statute. There is error. Order discharging the attachment modified by refusing the motion, but allowing the defendant to take the property, provided an undertaking be filed as required by C. O. P., sec. 213. Per Curiam. Error.