McGilvery v. Morehead
California Supreme Court
Appeal from the Fourth Judicial District, San Francisco County. The plaintiff brought the action upon which this application for the arrest of one of the defendants was made, for the recovery of $3525 damages, alleged to have been sustained by plaintiff upon a contract made with defendaiits, set out in the complaint. The bill was filed 1st January, 1852, and alleges that defendants, Whitehead, Morehead and Waddington were partners in trade.
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Appeal from the Fourth Judicial District, San Francisco County. The plaintiff brought the action upon which this application for the arrest of one of the defendants was made, for the recovery of $3525 damages, alleged to have been sustained by plaintiff upon a contract made with defendaiits, set out in the complaint. The bill was filed 1st January, 1852, and alleges that defendants, Whitehead, Morehead and Waddington were partners in trade. The affidavit bears the same date as the complaint; in which the plaintiff makes oath, that the facts stated in the complaint are true; that he has…
1Opinion of the CourtHeydehteldt, Justice
Appeal from an order of the District Court discharging the defendant from arrest.
The act which allows a party to be arrested in a civil case, requires the affidavit to disclose that a sufficient cause of action exists, and that the case is one of those for which the remedy of arrest is provided.
It is well settled, that the facts necessary to be shown must appear by the positive averments of the affidavit; and it is insufficent to refer to the complaint or to any other paper to show what the affidavit ought itself to disclose, although it is positively averred that such complaint or paper is…
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