a. Disposal of property.-I. loaned G. $1,000, taking, as security, his note and eleven receipts signed by G.'s wife, for eleven consecutive payments of 157. each, payable to her by K. out of her separate estate. Before the first of these installments became due, G. forbade K. to pay the amounts to I., and thereafter himself drew them out as they became due. In an action by I. to recover of G. said $1,000, it was held that G. could not be arrested; he had not removed or disposed of his property to defraud his creditors, nor was the debt fraudulently contracted (Isaacs v. Gorham, 1 Hilton, 480).

b. Taking or detaining property.-A defendant cannot be arrested in an action of ejectment (Merrett v. Carpenter, 33 How. 428; 2 Keyes, 462; 3 id. 142).

c. This subdivision does not apply to an action to set a side an assignment of personal property (Fassett v. Tallmadge, 37 Barb. 436; 14 Abb. 188).

Note to subdivision 5.

d. Removal of property.-To warrant an order of arrest under this subdivision, the disposition must be with an actual, not a constructive intent to defraud (Caldwell's case 13 Abb. 405; 35 Barb. 444; Pacific Mut. Ins. Co v. Machado, 16 Abb. 451; Spies v. Joel, 1 Duer, 669; Birchell v. Straus, 8 Abb. 54; Krauth v. Vial, 10 Abb. 140); and the action must be one for the recovery of money (Caldwell's case, 13 Abb. 405; 35 Barb. 444). What is a fraudulent disposition of property (see Phillips v. Benedict, 12 Abb. 355; 33 Barb. 655; McButt v. Hirsch, 4 Abb. 441; Hathorn v. Hall, 4 Abb. 227; Courter v. McNamara, 9 How. 265; Brodsky v. Ihms, 25 How. 471; 16 Abb. 251).

e An order of arrest on the ground that defendant is about to dispose of his property with intent to defraud his creditors, should only be made on legal evidence tending to convict him of such a charge (Courter v. McNamara, 9 How. 255; see, however, Crandall v. Bryan, 5 Abb. 162; 15 How. 48; Toole v. De Goicouria, 36 How. 127).

f. A disposition of property in a foreign country, between foreigners, to defraud creditors, is not a ground of arrest in this State (Blason v. Bruno, 21 How. 112; 12 Abb. 265; 33 Barb. 520).

g. What is a disposal of property with intent to defraud creditors? (McButt v. Hirsch, 4 Abb. 441.)

h. Female.-A female cannot be arrested in an action against her for breach of promise to marry (Seifke v. Tuppy, 3 Code Rep. 23); nor in action on a judgment (Baldwin v. Kimmell, 1 Rob. 109; 16 Abb. 353); nor for fraudulently contracting a debt (Wheeler v. Hartwell, 4 Bosw. 684); but she may be for converting personal property (So lomon v. Waas, 2 Hilton, 183; North. R. R. v. Carpentier, 13 How. 222; 3 Abb. 259); and in an action of tort against her and her husband (Schaus v. Putscher, 25 How. 463).

$ 180. Order of arrest, by whom made.

An order for the arrest of the defendant must be obtained from a judge of the court in which the action is brought, or from a county judge.

i. In Seymour v. Mercer (13 How. 564), held that a person elected a local officer to discharge the duties of surrogate for Cayuga county, had power to make an order of arrest.

§ 181. (Am'd 1849.)

(Am'd 1849.)

Affidavit to obtain order.

The order may be made, where it shall appear to the judge by the affidavit of the plaintiff, or of any other person, that a

sufficient cause of action exists, and that the case is one of those mentioned in section 179.

The provisions of this chapter shall apply to all actions included within the provisions of section 179, which shall have been commenced since the thirtieth day of June, 1848, and in which judgment shall not have been obtained.

a. Affidavit.-The principle as to affidavits, to hold to bail, remains as under the former practice (Martin v. Vanderlip, 3 How. 265; Adams v. Mills, id. 219).

b. The affidavit should be positive, and make out a prima facie case against the defendant (id.) It must show: 1, that a sufficient cause of action exists; 2, that it is among those specified in the 179th section (id.) It is not sufficient to state that "the case is one of those mentioned in section 179." It must appear from the facts stated that it is such a case (Pindar v. Black, 2 Code Rep. 53; 4 How. 95). The affidavit need not state that "an action has been, or is about to be commenced." (ib.) The "name" of the party to be arrested need not be stated, if unknown. He may be designated as "the real defendant," and whose name is not known; or by any name, as for instance, “The man in command of the Sloop Hornet" (ib.) The "entitling the affidavit in a suit" may now be disregarded (ib.; see City B'k v. Lumley, 28 How. 397). c. To entitle a plaintiff to an order under this subdivision (4 of section 179) his affidavit should show: 1, Facts constituting a cause of action; 2, that the defendant applied to plaintiff to sell goods on credit, stating when and where, and the tenor of the application; 3, that to induce plaintiff to sell such goods to defendant on credit, defendant then and there represented to plaintiff that he, defendant, &c. (setting forth the representations); 4, that plaintiff believed such statements to be true, and was induced thereby to sell and deliver to defendant upon credit the goods so applied for, and that, except for such representations, plaintiff would not have made such sale and delivery; 5, that all said representations, or some of them (stating which of them), were false when so made to plaintiff, that defendant knew them to be false at the time he made them, and that defendant made same with intent to defraud plaintiff by obtaining said goods upon credit without paying for them. It is not enough to say the representations were and are untrue, but the affidavit must state facts within the knowledge of the deponent which will satisfy the judge of their untruth (Smith v. Jones, 4 Rob. 656).

d. The affidavit may be on information and belief, but must in that case set forth the source of such information, and a belief in its truth, and the facts and circumstances on which such deponent's belief is founded (Whitlock v. Roth, 5 How. 143; Crandall v. Bryan, 5 Abb 162; 15 How. 48; Moore v. Calvert, 9 How. 474; City B'k v. Lumley, 28 How. 397; Union Bank v. Mott, 9 Abb. 106; 6 Abb. 318). It should appear how the information was derived, and the terms as near as can be in which it was communicated, and why the person communicating did not himself make the affidavit (Bell v. Mali, 11 How. 255; see Peel v. Elliot, 16 How. 481; 28 Barb. 200; 7 Abb. 433; Blason v. Bruno, 21 How. 112; 12 Abb. 265; 33 Barb. 520; Cook v. Roach, 21 How. 152; Satow v. Reisenberger, 25 How. 164); and where the information is derived from written instruments, authenticated copies of such instruments should be furnished to the court (De Weerth v. Feildner, 16 Abb. 295; S. C. 25 How. 419). Where the charge is of obtaining credit on false representations, the representations should be set forth and the respects in which they are false pointed out. A general allegation of falsity will not suffice (Draper v. Beers, 17 Abb. 163; see Cummings v. Woolley, 16 Abb. 297, note).

e. In an action by a married woman respecting her separate property, she is not required, in her affidavit to obtain an order of arrest, to state how she

acquired her property; it is sufficient if she states in general terms that the property is her separate and individual property (Lippman v. Petersburgh, 10 Abb. 254).

a. In an action for a malicious prosecution, an affidavit for holding the defendant to bail is insufficient when it states only in general terms the existence of malice and the want of probable cause. The facts which are relied on as a prima facie evidence of a want of probable cause must be set forth in the affidavit, so as to enable the judge to whom the application for the order of arrest is made, to draw the proper conclusions of law (Vanderpool v. Kissam, 4 Sand. 715). Stating that the magistrates immediately dismissed the case,-held sufficient (Gould v. Sherman, 10 Abb. 411).

b. An affidavit that the defendant "has removed or disposed of his property with intent to defraud his creditors," is insufficient, unless facts to warrant such a conclusion are stated (Frost v. Willard, 9 Barb. 440).

c. Where it is charged that the defendant is about to dispose of his property with intent to defraud his creditors, the judge must have legal evidence tending to convict the defendant of such a charge (Courter v. McNamara, 9 How. 255).

d. The complaint sworn to may be considered as an affidavit; and if the complaint and affidavit are together sufficient to warrant the order, although the affidavit alone would not be sufficient, the order will be sustained (Brady v. Bissell, 1 Abb. 76; Turner v. Thompson, 2 id. 444; see Corwin v. Freeland, 6 N. Y. 463).

e. Giving bail is a waiver of all defects in the affidavit (Stewart v. Howard, 15 Barb. 26).

$182. 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 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.

f. The undertaking must be filed with the clerk of the court (§ 423) forthwith; (Rule 4), but no copy need be served on the defendant (Leopold v. Poppenheimer, 1 Code Rep. 39). The sheriff is required to file with the clerk the affidavits on which an [order of] arrest is made, within ten days after the arrest (Rule 7).

g. The undertaking need not be signed by the plaintiff or any agent of his (Askins v. Hearns, 3 Abb. 184; Bellinger v. Gardner, 2 id. 441; Courter v. McNamara, 9 How. 255; Leffingwell v. Chave, 19 How. 54). When a foreign state is plaintiff, an undertaking signed by its resident minister is sufficient (Republic of Mexico v. Arrangois, 5 Duer, 634); an undertaking with one surety would, it seems, be sufficient (Ward v. Whitney, 6 N. Y. 446); it rests entirely in the discretion of the judge making the order whether or not the plaintiff shall give an undertaking with sureties (Courter v. McNamara, 9 How. 255; Richardson v. Craig, 1 Duer, 666; Leffingwell v. Chave, 19 How. 59). See Rule 6.

§ 183. (Am'd 1849, 1862.) Order, when made, its form. Time to answer, or move to vacate.

(1.) 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.

(2.) 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 judg ment 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.

a. Assignee.-Semble, an assignee of a cause of action is entitled to the order in the same manner as the original creditor (see King v. Kirby, 28 Barb. 49; Haight v. Hayt, 19 N. Y. 464).

b. Form of order.—In an action to recover the possession of specific personal property, an order of arrest which recites that the cause of action is for a detainer or conversion, and requiring the sheriff to hold the defendant to bail in a specified sum, is unauthorized. In such an action, the ground of arrest is a concealment, &c., of the property, and the order must require an undertaking to pay the amount which may be recovered (Elston v. Potter, 9 Bosw. 636; Sherlock v. Sherlock, 7 Abb. N. S. 22; contra, see Tracy v. Griffin, 50 Barb. 70 and 35 How. 209).

c. The order may be made returnable within a certain specified number of days after the arrest of the defendant. It need not name a day certain (Continental B'k v. DeMott, 8 Bosw. 696). It should not be made returnable on a Sunday; but if it is, it is an irregularity which may be remedied by amendment (Gould v. Spencer, 5 Paige, 541; Wright v. Jeffrey, 5 Cow. 208; Boyd v. Vanderkemp, 1 Barb. Ch. 273; Stone v. Martin, 2 Denio, 185).

d. Judgment.-The judgment referred to in this section is a final, not a conditional judgment. Thus, where a judgment was entered against a defendant for default of an answer, and he was afterwards allowed to come in and plead, the judgment, in the mean time, to stand as security, it was held not such a judgment as prevented the defendant's arrest on the original cause of action (Union B'k v. Mott, 4 Abb. N. S. 270; 38 N. Y. 18).

e. Vacating.-The motion to vacate may be made after judgment, if within twenty days after service of the order (Pelo v. Clukey, 36 How. 179). See section 204, post.

§ 184. Affidavit and order to sheriff, copy to 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.

f. The omission to serve a copy of the order of arrest at the time of the arrest is an irregularity only, and does not entitle the defendant to his discharge

(Courter v. McNamara, 9 How. 257; Barker v. Cook, 40 Barb. 254; 16 Abb. 83; 25 How. 190). The defendant may move for an order on the plaintiff to serve him with a copy of the order of arrest (b.) The copy affidavit served, omitting the signature of the deponent or of the officer before whom the affidavit was sworn, does not invalidate the order of arrest (Barker v. Cook, supra; and see 8 Bosw. 591).

See note to section 182.

$ 185. Arrest, how made.

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.

§ 186. (Am'd 1870.) Defendant 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.-The release of a defendant from arrest by the consent of the plaintiff's attorney, does not, per se, operate as a discharge of the order of arrest, and the defendant is therefore liable to arrest on final process, where the judgment warrants it. It seems that if the order of arrest had been vacated, the defendant could not again be arrested upon final process (Meech v. Loomis, 28 How. 209).

§ 187. 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.

b. Qualifications.-The common-law disqualifications of bail remain unaffected by the code (Wheeler v. Wilcox, 7 Abb. 74; Miles v. Clarke, 2 Bosw. 709; 4 Bosw. 632); and the court will take judicial notice of the disqualifications of bail, though unopposed (Laporte's Bail, 3 Dowl. 110).

c. Bail.-The following persons cannot be bail: Officers of the different courts, as attorneys (15 Johns. 535; 1 Wend. 35; Doug. 467, n.; Cowp. 828; Miles v. Clarke, 2 Bosw. 709; 4 Bosw. 632). Attorneys' partners and clerks