{ "id": 8681883, "name": "JOSEPH D. CLARK, Adm'r., &c. v. B. F. CLARK and others", "name_abbreviation": "Clark v. Clark", "decision_date": "1870-01", "docket_number": "", "first_page": "150", "last_page": "152", "citations": [ { "type": "official", "cite": "64 N.C. 150" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "63 N. C. 548", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11278275 ], "opinion_index": -1, "case_paths": [ "/nc/63/0548-01" ] }, { "cite": "63 N. C. 548", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11278275 ], "opinion_index": 0, "case_paths": [ "/nc/63/0548-01" ] } ], "analysis": { "cardinality": 287, "char_count": 4373, "ocr_confidence": 0.384, "pagerank": { "raw": 4.972928113935304e-07, "percentile": 0.9354352319382327 }, "sha256": "3d310d7beee14c704549b61ca19fba0469b1a0a9726895f129ce6353e310ec6f", "simhash": "1:a4b6adabd8b9e4c6", "word_count": 759 }, "last_updated": "2023-07-14T17:28:35.890237+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JOSEPH D. CLARK, Adm\u2019r., &c. v. B. F. CLARK and others." ], "opinions": [ { "text": "Pearson, C. J.\nPassing by the objection that the Judge could not entertain a motion to vacate the order for an attachment of property, upon a notice returnable before the Court \u2014 that is, the Clerk, and admitting the first affidavit to be insufficient to support the warrant of attachment, upon the distinction taken between a thing done, and a thing which the party fears and believes is about to be done, Hughes v. Person, 63 N. C. R. 548: We think his Honor erred in not allowing the plaintiff to have the benefit of his additional affidavit. It sets out fully the grounds on which he believed that the defendant was about to dispose of his property, in order to defraud his creditors, and particularly, to prevent the plaintiff from collecting his debt, which in a g-eneral sense, is expressed by the words \u2019\u2018to defraud cred-tors.\nIf the defendant had put the question on the insufficiency \u25a0of the first affidavit, the distinction taken in Hughes v. Person, supra, would have supported the objection; unless the .allegation of the plaintiff that he was afraid to set out specifically the ground of his belief, because of the general \u25a0character of the defendant as a violent and lawless man, could he taken as sufficient to make an exception.\nBut the defendant, not content with filing an answer to the complaint, also files an affidavit in reply to the affidavit on which the warrant of attachment issued. This let in the -additional affidavit of the plaintiff, which cures any omission in the affidavit of the plaintiff: C. O. P. sec. 96.\nIn proceedings of this nature, a party, aided by the advice \u25a0of counsel learned in the .law, is left to make the move which he thinks best, and if his move gives to his adversary a right to make another move, it belongs not to the Court to take sides, and, by ruling out the last two moves, put the matter upon the sufficiency of the first affidavit. \u201cPair play\u201d is a rule of the common law, and when one takes his chance, he must abide by the result.\nThere is error. This will be certified.\nPer Curiam. \u2019 Error.", "type": "majority", "author": "Pearson, C. J." } ], "attorneys": [ "Peebles & Peebles for the appellant.", "Bornes and Rogers & Batchelor, contra." ], "corrections": "", "head_matter": "JOSEPH D. CLARK, Adm\u2019r., &c. v. B. F. CLARK and others.\nThe plaintiff made an affidavit, for a warrant of attachment, that was insufficient in point of form, but the warrant was issued : the defendant, as ground for a motion to discharge the warrant, made a counter affidavit ; and thereupon the plaintiff replied with another affidavit, the form of which, was unobjectionable : Held, that upon the motion, the plaintiff was entitled to have his second affidavit considered, and that its completeness did away with what otherwise would have been the consequences of defects in his original affidavit, (C. C. P. \u00a7 196.)\n{Hughes v. Person, 63 N. C. 548, cited and approved.)\nMotion to discharge an attachment, heard before Watts, J., at Eall Term 1869 of Northampton Court.\nThe action had been begun on the 4th of August' 1869, returnable to Eall Term; and an affidavit for an attachment returnable before the Clerk, was made npon the 30th of the same month. The ground alleged was, \u201cThat the defendant, Benjamin E. Clark, is about to dispose of his property with intent to defraud his creditors,\u201d and the affidavit went on to allege, \u201cThat I am able to prove the grounds of my fears, and am willing and ready to do so if necessary, but the violence and lawlessness of the defendant\u2019s, Benjamin E. Clark\u2019s character, prevents specification at the present time.\u201d\nThe Clerk ordered a warrant to issue as asked, and at Eall Term 1869 the defendant appeared, and answered the complaint, and also filed a counter affidavit on the subject of the attachment, denying the allegation of the plaintiff as above, and then making some explanations, and statements as to the amount, &e., of his property.\nIn reply to this, the plaintiff made another affidavit, giving, in detail, acts done by the defendant, in sending property out of the State in fraud of creditors, and also specific threats made by the defendant, of his purpose to evade the payment of the debt sued upon, and also, after the bringing of the action, to defeat the action.\nPreviously to the term, the defendant Clark, had given notice to the plaintiff of his intention to move the Judge to discharge the attachment.\nHis Honor granted the order to discharge, and the plaintiff appealed.\nPeebles & Peebles for the appellant.\nBornes and Rogers & Batchelor, contra." }, "file_name": "0150-01", "first_page_order": 174, "last_page_order": 176 }