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c. Entitling affidavits.-The error of entitling affidavits, in an application to obtain an order of arrest before the action is pending, will not be regarded; the practice has prevailed since the Code, of entitling them. City Bank v. Lumley, 28 How. 397; Pindar v. Black, 2 Code R. 53; S. C. 4 How. 95. See, under the former practice, Milliken v. Selye, 3 Denio, 54.

d. Affidavit under subd. 4, § 179. The affidavit should show: 1. All the facts necessary to entitle the plaintiff to recover, i. e., the cause of action. 2. That the defendant applied to the plaintiff, and requested him to sell goods to the latter on credit, stating when and where. 3. That, for the purpose of inducing such sale of goods on credit, the defendant, then and there, falsely and fraudulently stated and represented to the plaintiff, etc. (setting forth the representations). 4. That the plaintiff, believing such statements, was thereby induced to, and then did, sell and deliver, upon credit, etc., and that the plaintiff, except for such statements, would not have made such sale, etc. 5. That all such statements (or a part, stating which) were false, to the knowledge of the defendant, and that they were made with intent to defraud, etc. Smith v. Jones, 4 Rob. 655.

The affidavit must set forth the particular representations made in order to induce the sale upon credit, and in what respects they were untrue; the general allegation that they are false and fraudulent is insufficient. id. Draper v. Beers, 17 Abb. 163. But, see Cummings v. Wooley, 16 Abb. 297 (n.)

e. Disposal of property.-In order to warrant the issuing of an order of arrest for the fraudulent disposal of property, there must be, before the judge, "legal evidence" tending to convict the defendant of the charge. It is for the one to whom the application is made to decide as to the weight of the evidence. Courter v. McNamara, 9 How. 255. A general allegation that the defendant has "assigned or secreted his property with intent to defraud his creditors," is insufficient; the grounds which warrant such allegation must be set forth. Frost v. Willard, 9 Barb. 440. See, Anonymous, 2 Code R. 51.

f. Removal from the State.-In order to bring the case within the statute, it must appear by the affidavits that the defendant is to change his residence; simply going to another State, with no intention of a permanent absence, is not removing, within the meaning of the act. Brophy v. Rodgers, 7 N. Y. Leg. Obs. 152. See note II, § 179, ante.

g. Malicious prosecution.--The affidavit must set forth the facts which are relied upon to enable the judge, to whom the application is made, to draw the proper conclusion of law; thus, "it is insufficient where it merely states, in general terms, the existence of malice and the want of probable cause." Vanderpool v. Kissam, 4 Sandf. 715. Where it was stated that the magistrate, before whom the alleged malicious prosecution was had, immediately dismissed the cause, was held to make a prima facie case. Gould v. Sherman, 10 Abb. 411.

h. General requisites.—An affidavit to obtain a provisional remedy in an action by a married woman, respecting her separate property, is not sufficient because it states that the property in question is her separate and individual property, without showing how it was acquired. Lippman v. Petersburgh, 10 Abb. 254. See Wasserman v. Willett, id. 63.

An affidavit which states that the case "is one of those mentioned in section 179," is defective, it should state the facts which make it such. The statement that "an action has been, or is about to be commenced," is unnecessary, and the name of the party, if unknown need not to be stated; he may be designated as the real defendant, or by any

name.

Thus, the judge made an order to arrest "the man who was in command of the sloop Hornet when the injury was done, etc." Pindar v. Black, 4 How. 95; S. C. 2 Code R. 53.

The order of arrest cannot be procured on the pleadings, but must be upon affidavit showing that a cause of action exists and that it is one mentioned in section 179. Corwin v

Freeland, 6 N. Y. (2 Seld.), 560; Rev'g S. C. 6 How. 241. See Wicker v. Harmon, 21 id. 462; S. C. 12 Abb. 476, sub nom. Wickes v. Harmon.

But if a verified complaint is before the judge, and the application is founded upon an affidavit which proves defective, the complaint may be referred to, to supply the defect. Turner v. Thompson, 2 Abb. 444; Brady v. Bissell, 1 id. 76.

It was formerly held that the perfecting of bail was a waiver of all defects in the affidavits, but it is now held otherwise. Warren v. Wendell, 13 Abb. 187; Wicker v. Harmon, 21 How. 462; S. C. 12 Abb. 476, sub nom. Wickes v. Harmon. See Stewart v. Howard, 15 Barb. 26. This rule has been changed. Knickerbocker Life Ins. Co. v. Ecclesine, 6 Abb. N. S. 9, 25.

§ 182. [157.] Security by plaintiff before order of arrest.

Before making the order, the judge shall require a written undertaking on the part of the plaintiff, with or without sureties, to the effect, that if the defendant recover judgment, the plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum specified in the undertaking, which

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shall be at least one hundred dollars. If the undertaking be executed by the plaintiff, without sureties, he shall annex thereto an affidavit that he is a resident and householder or freeholder within the State, and worth double the sum specified in the undertaking, over all his debts and liabilities.

a. An undertaking "on the part of the plaintiff" may be executed by any person or persons, at the instance of the plaintiff, who will undertake, unqualifiedly, that the plaintiff will indemnify the defendant for all damages he may sustain. Leffingwell v. Chave, 19 How. 54; S. C. 10 Abb. 472; 5 Bosw. 703; Bellinger v. Gardner, 2 Abb. 441; S. C. 12 How. 581, sub nom. Bellinger v. Gardiner; Askins v. Hearns, 3 Abb. 184. But contra, Richardson v. Craig, 1 Duer, 666.

All that the defendant can require is, that there shall be a principal in form. Leffingwell v. Chave, supra; and it rests in the discretion of the judge whether he will require any security, by other parties, as sureties. Bellinger v. Gardiner, 2 Abb. 441; S. C. 12 How. 381, sub nom. Bellinger v. Gardner; Courter v. McNamara, 9 id. 255; Richardson v. Craig, 1 Duer, 666.

b. Foreign state.-Where a foreign State is plaintiff, an undertaking, signed by its resident minister, was held to be sufficient under the provisions of this section. Republic of Mexico v. Arangoiz, 5 Duer, 634.

c. Filing undertaking.-The under taking must be filed forthwith with the clerk of the court. Rule 5. See § 423.

If it is not filed in pursuance of the provisions of Rule 5, the defendant may move to have the proceedings set aside. Newell v. Doran, 21 How. 427. Where the plaintiff failed to file the undertaking, properly indorsed, and the defendant moved to vacate the order, the motion was granted. Ib.

d. Service thereof.-The undertaking need not be served on the defendant. Leopold Poppenheimer, 1 Code R. 39.

V.

§ 183. [158.] (Am'd 1849, 1862.) Order, when made and its form. The order may be made to accompany the summons, or at any time afterwards, before judgment. It shall require the sheriff of the county, where the defendant may be found, forthwith to arrest him and hold him to bail in a specified sum, and to return the order at a time and place therein mentioned, to the plaintiff or attorney by whom it shall be subscribed or indorsed. But said order of arrest shall be of no avail, and shall be vacated or set aside on motion, unless the same is served upon the defendant as provided by law before the docketing of any judgment in the action, and the defendant shall have twenty days after the service of the order of arrest in which to answer the complaint in the action and to move to vacate the order of arrest, or to reduce the amount of bail.

I. THE ORDER OF ARREST.

a. When may be made.-Although a judgment by default has been taken, founded on allegations of fraud, and the defendant is allowed to come in and plead, the judgment standing as security, yet he may be arrested and held to bail in the action. The term "judgment" in this section means "the final determination of the rights of the parties in the action." Mott v. Union Bank of City of New York, 35 How. 332; S. C. 38 N. Y. (11 Tiff.), 18; 4 Abb. N. S. 270; 4 Trans. App. 291; Aff'g S. C. 8 Bosw. 591; and S. C. on motion to vacate the order, 16 How. 525, sub nom. Union Bank v. Mott, 8 Abb. 150.

In the superior court, the order may accompany the summons into the sheriff's hands, but the former cannot be executed until after the latter has been served. Gould v. Bryan, 3 Bosw. 626.

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b. Form of order.-There is but one form of order of arrest prescribed by the de, and all must require the sheriff to arrest the defendant and hold him to bail in a specific sum. That under subdivision 3 of section 178, should be the same as any other, and case, if the sum in which the defendant is to be held to bail is less than double the value of the property, as stated in the affidavit of the plaintiff, it does not make the order void, nor is it defective because it fails to recite the subdivision of § 179, under which it is issued. Tracy v. Veeder, 35 How. 209; S. C. 50 Barb. 70, sub nom. Tracy v. Griffin. See, however, Elston v. Potter, 9 Bosw. 635, and Sherlock v. Sherlock, 7 Abb. N. S. 22. See note IV, subd., § 179, ante.

c. When to be returnable.—An order which directed the sheriff to return the order

to the plaintiff's attorneys within "five days after the arrest of said defendants," was held to be sufficient in this respect. Continental Bank v. De Mott, 8 Bosw. 696.

If the order is made returnable on Sunday, it is an irregularity which may be remedied either by waiver, as by putting in bail. Wright v. Jeffrey, 5 Cow. 15. Or by amendment. Stone v. Martin, 2 Denio, 185. See Boyd v. Vanderkemp, 1 Barb. Ch. 273 (288).

d. Assignment.-A cause of action which is assignable within the provisions of section 179, does not lose its character by being assigned, and the assignee is entitled to an order Jarrest, the same as the original creditor.

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King v. Kirby, 28 Barb. 49. See Johnston v.
Bennett, 5 Abb. N. S. 331; and Haight v.
Hayt, 19 N. Y. (5 Smith), 464.

e. Motion to vacate.-Under this sec tion a motion to vacate the order may be made after judgment, if made within twenty days after the service of the order. Pelo v. Clukey, 36 How. 179. The last clause of this section is not in conflict with section 204 of the Code. id. See § 204, note 1, subd b. A motion to vacate the order of arrest will not be granted, if a proper cause of action has been set forth, simply because there is no special cause for requiring bail. Baker v. Swackhamer 3 Code R. 248; S. C. 5 How. 251.

§ 184. [159.] Affidavit and order to be delivered to sheriff, and copy . defendant.

The affidavit and order of arrest shall be delivered to the sheriff, who, upon arresting the defendant, shall deliver to him a copy thereof.

a. Irregularities in the service.—If no copy or paper purporting to be a copy of the affidavit is served by the sheriff upon arresting the defendant, it is an irregularity only, and will not entitle the defendant to his discharge. Barker v. Cook, 25 How. 190; S. C. 16 Abb. 83; 40 Barb. 254, citing Courter v. McNamara, 9 How. 255; Keeler v. Belts, 3 Code R. 183. In the latter case, the court directed the proceedings to be vacated unless a oopy of the order of arrest should be served on the defendant's attorney

§ 185. [160.] Arrest, how made.

and the costs of the motion paid by the plaintiff within ten days.

The omission in the copy of the affidavit served, of the signature of the party to it and of the officer before whom it was sworn, does not affect the validity of the order. Barker v. Cook, 25 How. 190; S. C. 16 Abb. 83; 40 Barb. 254.

b. Filing affidavits.-It is the duty of the sheriff to file the affidavits with the clerk, within ten days after the arrest. Rule 6.

The sheriff shall execute the order, by arresting the defendant and keeping him in custody, until discharged by law; and may call the power of the country to his aid, in the execution of the arrest as in case of process.

Coroner.-In an action to which the sheriff is a party, the coroner has power, in a proper case, to call to his aid the power of

the county. Slater v. Wood, 9 Bosw. 15, 36. See § 419, post.

§ 186. [161.] (Am'd 1870.) Defendant to be discharged on bail or deposit.

The defendant, at any time before execution, shall be discharged from the arrest, either upon giving bail, or upon depositing the amount mentioned in the order of arrest as provided in this chapter. The defendant may give bail whenever arrested, at any hour of the day or night, and shall have reasonable opportunity to procure it, before being committed to prison.

a. Release from arrest.-The plaintiff's attorney may consent to the release of the defendant from arrest; but such release does not operate as a discharge of the order, and the defendant may, thereafter, be arrested

on final process. Meech v. Loomis, 28 How. 209; S. Č. 23 id. 484; 14 Abb. 428; S. C. Aff'd, id. 432 (n.)

b. Sheriff bound to accept bail.— The prisoner is entitled to his discharge on

*County, in § 150 of the Code of 1848.

tendering the bond with sufficient sureties, and if the sheriff refuse to accept such bond, he is liable to an action. The action should be brought, not against the officer who refuses to accept it, but against the sheriff. Richards v. Porter, 7 Johns. 137; Posterne v. Hanson, 2 Saund. 59, 61, e, 5; Smith v. Hall, 2 Mod. R. 32.

c. Failure to charge in execution. If a defendant, who has been arrested, is prejudiced by the delay of the plaintiffs in entering judgment, he may compel them to

| charge him in execution; but if he fails to move for that purpose, he cannot charge them with laches. Where the plaintiffs were guilty of gross negligence, the court compelled them to stipulate to waive all objection to the debtor taking the fourteen day act for want of being charged in execution, and allowed the prisoner to make an assignment, upon giving fourteen days' notice, and be discharged under the provisions of that act. Carter v. Loomis, 2 Abb. N. S. 295.

§ 187. [162.] (Am'd 1849.) Bail, how given.

The defendant may give bail, by causing a written undertaking to be executed by two or more sufficient bail, stating their places of residence and occupations, to the effect that the defendant shall at all times render himself amenable to the process of the court, during the pendency of the action, and to such as may be issued to enforce the judgment therein, or if he be arrested for the cause mentioned in the third subdivision of section 179, and undertaking to the same effect as that provided by section 211.

a. Special bail-On an arrest, under the former practice, special bail could be given, and the bail provided for in this section is the substitute therefor. Stewart v. Howard, 15 Barb. 26. Matter of Taylor, 7 How. 212.

b. Other security.-A party, at whose

suit an arrest is made, may take any security he pleases on discharging his debtor from arrest, but an officer can take only that prescribed by statute. Decker v. Judson, 16 N. Y. (2 Smith), 439, 443; Winter v. Kinney, 1 N. Y. (1 Comst.), 365.

§ 188. [163.] (Am'd 1849, 1851.) Surrender of defendant.

At any time before a failure to comply with the undertaking, the bail may surrender the defendant in their exoneration, or he may surrender himself to the sheriff of the county where he was arrested, in the following

manner:

1. A certified copy of the undertaking of the bail shall be delivered to the sheriff, who shall detain the defendant in his custody thereon, as upon an order of arrest, and shall, by a certificate in writing, acknowledge the surrender;

2. Upon a production of a copy of the undertaking and sheriff's certificate, a judge of the court, or county judge, may, upon a notice to the plaintiff, of eight days, with a copy of the certificate, order that the bail be exonerated; and, on filing the order and the papers used on said application, they shall be exonerated accordingly. But this section shall not apply to an arrest for cause mentioned in subdivision 3, of section 179, so as to discharge the bail from an undertaking given to the effect provided by section 211.

Liability of bail: surrender.-If | bail are excepted to, and fail to justify, they are liable to the sheriff; if they are not excepted to, or if they justify, they are liable to the plaintiff and the sheriff is exonerated; whether they are liable to the plaintiff or to the sheriff, they may surrender their princi

pal, and it seems that a portion of the bail may make such surrender. Thus, where bail was excepted to and had failed to justify, it was held that the surrender might be made by eight of the ten who executed the undertaking. Matter of Taylor, 7 How. 212.

189. [164.] Surrender of defendant.

For the purpose of surrendering the defendant, the bail, at any time or place, before they are finally charged, may themselves arrest him, or by a written authority, indorsed on a certified copy of the undertaking, may empower any person of suitable age and discretion to do so.

Surrender by sheriff.-It has been held that where the sureties fail to justify, the sheriff becomes bail, and in such case may surrender the defendant by re-arresting him.

Seaver v. Genner, 10 Abb. 256; Sartos v. Merceques, 9 How. 188. See note under § 188, ante

§ 190. [165.] Bail, how proceeded against.

In case of failure to comply with the undertaking the bail may be proceeded against by action only.

I. ACTION UPON BAIL BOND.

a. Where brought.-Actions upon bail bonds should, in general, be brought in the court where the original suit was commenced; though where there is necessity, they may be brought in another court. If the action is brought in the wrong court, the defendant's remedy is by motion and not by plea. Otis v. Wakeman, I Hill, 604, and cases there cited. b. Action by sheriff.-A sheriff has no right of action against bail until he has actually sustained damage by their default, and such dainage must be averred and shown. Clapp v. Schutt, 29 How. 255; S. C. 44 Barb. 9; 19 Abb. 121.

But it has also been held that the sheriff is not obliged to wait until he has been sued before he may bring his action against the bail; and hence that an allegation in the complaint of the institution of such an action against him is immaterial. Willet v. Lassalle, 19 Abb. 272; S. C. 1 Rob. 618.

It was held not to be essential to aver that the undertaking was not delivered to the plaintiff's attorney in the former action. Ib.

c. Against part of bail —In respect to this, BROWN, J., laid down the rule to be, that "if the plaintiff has the right to take the persons of all the defendants, in satisfaction of his judgment, he has the right to proceed against the bail of one, as to whom there may be a return of non est inventus." Penn v. Remsen, 24 How. 503.

d. Defense to action.-In an action against bail, whose liability has become fixed, they cannot show, either in bar of the action

or in mitigation of damages, that before the recovery of the judgment against their principal, he was, and that ever since that time he has been, utterly insolvent, and has had no property whatever that was liable to be applied in payment of the judgment. Levy v. Nicholas, 19 Abb. 282; S. C. 1 Rob. 614; Metcalf v. Stryker, 10 Abb. 12; S. C. 31 Barb. 62. If the judgment has been irregularly obtained, they may be heard, if they apply seasonably, on motion to set it aside, and let them in to defend the original action, and will be allowed, for their own protection, to defend an action brought against their principal. Jewett v. Crane, 35 Barb. 208; S. C. 13 Abb. 97.

Sureties are estopped by their undertaking from questioning the liability of their princi pal to arrest, or the regularity of the order; the only mode of avoiding liability, after a return of non est upon ca. sa., is to surrender their principal under § 191. Gregory v. Levy 12 Barb. 610; S. C. 7 How. 37; Kelly v. Mc Cormick, 28 Ñ. Y. (1 Tiff.), 318, 320.

e. Motion to set aside proceedings. On a motion to set aside proceedings in an action on a bail-bond, the papers should be entitled in that suit, and not in the original action. Phelps v. Hall, 5 Johns. 367, citing Pell v. Jadwin, 3 id. 448.

It is only on an application which is entirely dehors the action, that the papers need not be entitled in the action. Hess v. Joseph, 7 Rob. 609.

191. [166.] (Am'd 1849.) Bail, how exonerated.

The bail may be exonerated, either by the death of the defendant, or his imprisonment in a state prison, or by his legal discharge from the obligation to render himself amenable to the process, or by his surrender to the sheriff of the county where he was arrested, in execution thereof, within twenty days after the commencement of the action against the bail, or within such further time as may be granted by the court.

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