The plaintiffs in their complaint allege, in substance, that in March, 1886, they sold and delivered to the defendants goods amounting to the sum of $475.19, which the defendants promised to pay, and that no part of it has been paid.
After the summons was issued, upon an affidavit, charging that defendants had disposed of their property with intent to (483) defraud their creditors, the plaintiffs obtained an order of arrest.
A motion to vacate and set aside this order, heard upon affidavits before Avery, J., at Fall Term, 1886, was disallowed, from which no appeal was taken.
The defendant Hooper, in answer to the complaint, says in substance, that he, with the other defendant, J. W. Watson, did purchase goods from one C. E. Lee, who professed to be agent for the plaintiffs' firm, and that payment therefor has not been made.
He then, in his answer, alleges in substance, that the plaintiffs "have caused an attachment to issue and an order of arrest to be sued out," upon which he has been arrested and held to bail, upon the charge of having concealed and disposed of his property, with intent to defraud, etc.; the said charge is not true, and that by reason of the said false charge he has been restrained of his liberty and his credit broken and impaired, to his damage $2,000, for which he asks judgment, by way of counterclaim.
To so much of the answer as alleged a defense by way of counterclaim the plaintiffs demurred, and upon trial before Montgomery, J., at Fall Term, 1887, the demurrer was sustained. There was no exception to the judgment sustaining the demurrer, and no appeal therefrom. *Page 384
Upon calling the case before Montgomery, J., the defendant moved, upon the same affidavits and for the same reasons, as before Avery, J., to vacate the order of arrest, which was refused, and the defendant excepted. The defendant then asked the court for an issue to be submitted to the jury upon the allegations in plaintiffs' affidavits and denied in defendant's affidavit, which was also refused, and the defendant excepted. Defendant then consented that plaintiff might take judgment. Appeal by the defendant. Two questions are presented for our consideration:
1. The refusal to vacate the order of arrest; and,
2. The refusal to submit the issue of fraud, raised by the allegation in the plaintiffs' affidavits and denied in the defendant's affidavits, to the jury.
Both questions have been judicially settled, adversely to the appellant.
In Roulhac v. Brown, 87 N.C. 1, it was held, in a case similar to this, that the judge properly declined to entertain a motion to vacate an order of arrest, when the same motion had been made at the previous term and refused. Ashe, J., said: "The decision upon the first motion was made by a court of competent jurisdiction, upon a substantial right, was reviewable by appeal, but no appeal was taken, and must therefore govern this case as res adjudicata"; and it governs this also. Upon the first question we need only refer to the foregoing case and the authorities there cited.
Upon the second question the case of Pasour v. Lineberger, 90 N.C. 159, and the authorities there cited, are equally conclusive.
The defendant submitted his motion to the court upon affidavits, and it was competent for the court to pass upon and find the facts and allow or refuse the motion, as the facts required. "It is not contemplated thatquestions of fact arising in such matters shall be tried by a jury."
Counsel for the defendant relied upon Claflin Co. v. Underwood,75 N.C. 485.
In that case the complaint contained specific allegations of fraud, which were denied in the defendant's answer, and when the judgment was entered, it was in these words: "By consent, judgment for the debt only; issues of fraud not tried"; and upon this judgment it was (485) held that the defendant was entitled to his discharge from arrest. That is unlike the case before us. Under the old practice, *Page 385 defendants (with certain exceptions) were required to give bail for their appearance to answer, etc., and if unable to give bail, they could only procure their discharge by filing an accurate schedule of their property, and, in the language of the times, "swearing out."
Under The Code, we think parties arrested and in custody, in pursuance of the provisions contained in section 290 et seq., if the order of arrest is not vacated "on motion," must seek their discharge in the mode prescribed in chapter 27, sec. 2942 et seq., of The Code. That chapter provides, in detail, the method by which every insolvent debtor may "be exempt from arrest or imprisonment, on account of any judgment previously rendered, or of any debts previously contracted"; and the suggestion that if the motion to vacate the order of arrest, when once passed upon and disallowed, is final, the defendant may be improperly and unjustly deprived of his liberty, is fully met by the provisions of that chapter, and "every person taken or charged on any order of arrest for default of bail, or on surrender of bail, in any action, and every person taken or charged in execution of arrest for any debt or damage rendered in any action whatever," may procure his discharge by a compliance with the requirements of that chapter.
Affirmed.
Cited: Patton v. Gash, 99 N.C. 285; Ashby v. Page, 108 N.C. 9; Bakerv. Garris, ibid., 226; Herndon v. Insurance Co., ibid., 650; Preiss v.Cohen, 117 N.C. 58; Ledford v. Emerson, 143 N.C. 534.
(486)