McNeely v. J. A. Haynes & Co., 76 N.C. 122 (1877)

Jan. 1877 · Supreme Court of North Carolina

76 N.C. 122

McNEELY & WALTON v. J. A. HAYNES & Co.

Arrest — Liability of Partners.

A defendant cannot be arrested under O. 0. P. § 149. (sub. sec. 4) unless lie has been guiltjr of fraud in contracting the debt for which the action is brought. Therefore, when one partner in a firm obtains credit by false representations, the other partner is not liable to arrest.

MotioN to vacate an Order of Arrest, made at Fall Tet m, 1876, of Eowan Superior Court, before Cloud, J. .

No statement of the facts is necessary to an understanding of the opinion. ITis Honor allowed the motion to vacate, and the plaintiff appealed.

Mr. Jas. C Kerr, for the plaintiffs.

Mr. J. M. McCorkle, for the defendants.

Bynum, J.

The defendants, J. A. and Calvin Haynes were partners in a mercantile business carried on in the county of Yadkin, where they both lived.

The plaintiffs were doing business in the town of Salisbury. Calvin Haynes purchased of the plaintiffs a bill of goods, as he at the time alleged, for the defendant firm and obtained credit therefor by false pretences and representations.

The plaintiffs thereupon instituted an action against both J. A. and Calvin Haynes, upon which .J. A. Haynes only was arrested, Calvin having escaped.

In a civil action, the defendant cannot be arrested, unless he has been guilty of a fraud in contracting the debt. C. C. P. § 149, sub. section 4. As it appears from the case, J. A. Haynes was not present when the goods were purchased by, Calvin, had no knowledge of it and in no wise connived at or assented to it; nor does it appear that the goods were-sent to ór received by him. His affidavit negatives every allegation of fraud on his part and the counter-affidavit of' the plaintiff does not contradict it.

His, Honor did not err in vacating the order of arrest as-to the defendant J. A.'Haynes.

Pee, Curiam. Judgment affirmed.