Clark v. Glover

Morphy, J., delivered the opinion of the court. Plaintiffs appeal from a judgment dissolving an order of sequestration, granted at their instance. The property sequestrated was a slave, whom they allege to have been specially mortgaged to them by one James C. Shule, and to have been sold by the latter, to Slaughter & Badger, in whose possession he now is. The alleged ground for obtaining this order, was their apprehension that the slave would be removed out of the state. Various grounds are assigned in the judgment appealed from, for the setting aside of the [268] sequestration. It will be unnecessary for us to notice them all, because we concur in the opinion expressed by the judge below, as to one of them, to wit: the insufficiency of the affidavit. The plaintiffs make oath, that they fear that the slave mortgaged may be removed beyond the jurisdiction of the state. They set forth neither in their affidavit nor in their petition, which is referred to in the affidavit, the facts which induce their apprehension. This is absolutely required by article 275 of the Code of Practice. The mere expression of a fear, which a party may or may not really entertain, cannot, and ought not, entitle him to this extraordinary remedy, especially when, as in the present case, it affects the rights of third persons. An affidavit, in •which the plaintiff states that “ he fears Uie defendant is on the eye of running1 the mortgaged slave out of the jurisdiction of the state, is insufficient to obtain an order of sequestration. He should state the facts which induce his apprehension. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.