Against whom an order may be obtained.

E. D. Smith, 355; Whittaker v. Merrill, 30 Barb. 389. The power to make an assignment of rights of action is not confined to natural persons, but extends equally to artificial persons. Grocers' National Bank v. Clark, 32 How. 160; S. C., 48 Barb. 26. In all the cases mentioned the defendant may be arrested in an action brought by the assignee.

Section 3. Against whom an order may be obtained.

a. Every person liable to arrest. As a general rule, all persons in this State are liable to arrest, and any exception, in the form of an exemption of a temporary or of a permanent nature, arises from considerations of public policy and interest, and not of social position. The persons exempt under the various stat- · utes and decisions have been specifically mentioned and classified in a previous article. Ante, 589 to 605. But the fact that a person is temporarily exempt from arrest will not afford a valid reason why an order of arrest should not issue against him, for, even where a defendant has been arrested while temporarily exempt, the order of arrest will not be vacated, although the defendant be discharged out of custody. A re-arrest on the same order may be had when the right to exemption ceases. Hart v. Kennedy, 15 Abb. 290; S. C., 14 id. 432; 23 How. 417; 39 Barb. 186; 24 How. 425; Petrie v. Fitzgerald, 1 Daly, 401.

b. Infants, married women, lunatics, etc. Infancy is not a bar to an arrest, and an order of arrest may be obtained against an infant as well as against an adult. Under the former practice infants could only be proceeded against by capias. The process was in the ordinary form, no notice being taken of infancy. People ex rel. Bailey v. Hoffman, 7 Wend. 489. An order of arrest against a married woman will be vacated on proof of coverture. The common-law rule in this respect is unchanged. Anonymous, 1 Duer, 613; S. C., 8 How. 134; Baldwin v. Kimmel, 1 Rob. 109; S. C., 16 Abb. 353. A lunatic may be arrested on civil process, and can only be discharged from imprisonment on an order from a county judge directing him to be removed to the State lunatic asylum. Bush v. Pettibone, 4 N. Y. (4 Comst.) 300; S. C., 1 Code R. N. S. 264; Laws of 1842, ch. 135.

c. Officers, agents, etc. An order of arrest may be obtained against the officers or agents of a corporation for misconduct in the performance of their duties as such. This rule also applies to cases where the act for which an arrest is sought consists in a misapplication or embezzlement of the property of the corpora

Who may grant the order.

tion. Crook v. Jewett, 12 How. 19; and to public officers in like cases; and it also extends to officers of foreign governments, when the action is brought in this State by the legalized officer of such government. Peel v. Elliott, 16 How. 481; Republic of Mexico v. De Arrangoiz, 5 Duer, 634, 643.

Section 4. Who may grant the order.

a. Judge of the court. An order for the arrest of a defendant must be obtained from a judge of the court in which the action is brought, or from a county judge. Code, § 180. But the power of a judge of the court to grant an order of arrest is limited as to time. The order can be granted to accompany the summons, or at any time afterward before judgment. Code, § 183. See § 7, a, post, 649. In an action brought by the attorney-general against a defendant for usurping an office and re ceiving the fees or emoluments of the same, the order can be granted only by a judge of the supreme court. Code, § 435.

b. County judge. The Code in section 180 authorizes a county judge to grant an order of arrest. But this does not authorize a judge of any county to grant such an order irrespective of the place of trial or residence of the parties or their attorneys. When an order of arrest is granted by a county judge, such judge must be a judge of the county where the action is triable, or of the county in which the attorney for the moving party resides. Code, § 401. As to the county in which an action is triable, see ante, 181 to 190, and §§ 124, 125 of the Code; Gould v. Chapin, 4 How. 185; S. C., 2 Code R. 107; Bangs v. Selden, 13 How. 163.

A local officer, elected to discharge the duty of surrogate in a county where there is an acting county judge and surrogate, may grant an order of arrest without regard to the questions whether the office of county judge was vacant, or whether the judge was unable to act. Seymour v. Mercer, 13 How. 564, 566, note. And no appeal will lie to the special term of the supreme court from an order so granted, as the officer acts as a justice of a supreme court at chambers, and his orders are to be reviewed in like manner. Conklin v. Dutcher, 5 How. 386; S. C., 1 Code R. N. S. 49; Code, § 403; Laws of 1851, ch. 108, § 1.

As to the disqualification of a judge to grant an order of arrest by reason of relationship, see New York and New Haven Railroad Company v. Schuyler, 28 How. 187; ante, 46, 47.

Affidavit on which to grant order.

Section 5. Affidavit on which to grant order.

a. By whom made The affidavit upon which the application is based may be made by the plaintiff, or by any other person who has sufficient knowledge of the requisite facts to convince the judge that an order should issue. Code, § 181.

b. What is an affidavit? An affidavit is a written statement or declaration of facts sworn or affirmed to before some officer who has authority to administer an oath.

An affidavit is always taken ex parte, and herein it differs from a deposition, as in the latter an opportunity is always given to the adverse party to cross-examine the deponent. An affidavit should be so framed as to intelligibly refer to the cause in which it is made; and this can most readily be done by inserting the title of the cause. It should state the place where it was taken, to show that the officer before whom it was taken had jurisdiction; it should be signed at the end by the affiant, and the jurat should be signed by the officer with the addition of his official title. When taken before certain specified officers, the statute requires that the affidavit should also bear the seal of such officers. See Officers of Courts, ante, 255; Affidavit, post, 641 to 645.

c. Contents in particular cases. General rules may be given in regard to the formal requisites of an affidavit, but it is evident that none can be given that will determine what facts must necessarily be set forth to meet the requirements of each particular case in which an affidavit may be employed. The affidavit used in support of an application for an order of arrest must show by statements, clearly and certainly expressed, that a sufficient cause of action exists, and that the case is one of those mentioned in section 179 of the Code. Code, § 181; Crandall v. Bryan, 15 How. 48; S. C., 5 Abb. 162; Pindar v. Black, 4 How. 95; S. C., 2 Code R. 53.

d. Mode of stating facts. The object of requiring an affidavit in support of an application for an order of arrest is to enable the judge to determine whether a sufficient cause of action exists, and whether the case is one of those mentioned in section 179 of the Code. The opinion of the person making the affidavit is of no importance; and where the affidavit recites mere conclusions of law, or contains a mere repetition of the bare words of the statute, it will be insufficient. Pindar v. Black, 4 How. 95; S. C., 2 Code R. 53; Crandall v. Bryan, 15 How. 48; S. C., 5 Abb.

Mode of stating facts in affidavit.

162. The facts or the sources of the information must be set forth upon which the belief of the deponent is founded, so that the court may be able to ascertain whether the party is right in entertaining the belief to which he deposes. So far as the facts may be within the knowledge of the plaintiff, they must be stated positively, but so far as they necessarily rest on information derived from others, they may be so stated, where the source and nature of the information are particularly set out, and a good reason is given why a positive statement of them cannot be procured. Whitlock v. Roth, 5 How. 143; S. C., 10 Barb. 78; 9 N. Y. Leg. Obs. 95; 3 Code R. 142; De Nierth v. Sidner, 25 How. 419; S. C., 16 Abb. 295; Vanderpool v. Kissam, 4 Sandf. 715; Blason v. Bruno, 21 How. 112; S. C., 33 Barb. 520; 12 Abb. 265; City Bank v. Lumley, 28 How. 397; Cook v. Roach, 21 id. 152. If the information is derived from letters or official documents in the possession of the person who makes the affidavit, or which it is in his power to procure, they should be presented with the application, or copies of them should be furnished, and where such papers or copies cannot be furnished, a satisfactory excuse for their absence should be given in the affidavit. De Nierth v. Sidner, 25 How. 419; S. C., 16 Abb. 295; City Bank v. Lumley, 28 How. 397. And where an affidavit is founded on information and belief, it should set forth good reasons why the person from whom the information is derived did not make the affidavit. Bell v. Mali, 11 How. 254. Unless some excuse is given, the rule of evidence applies, that a party shall not be allowed to resort to inferior evidence, when he has it in his power to produce evidence affording greater certainty as to the fact in question.

No arrest can be allowed on an affidavit based solely on information, and unexplained by allegations of facts showing the sources from which the information is drawn, or the reasons why the best evidence is not given. Moore v. Calvert, 9 How. 474; Union Bank v. Mott, 6 Abb. 315; Cook v. Roach, 21 How. 152; De Neirth v. Sidner, 25 id. 419; S. C., 16 Abb. 295, sub nom. De Weerth v. Feldner; Satow v. Reisenberger, 25 How. 164. The plaintiff cannot be too particular in the manner of the statement of the facts upon which he relies as evidence of his right to an order of arrest. These facts should be presented, where possible, with the same clearness, fullness and detail as they would be if relied on to recover at the trial of the cause, although an order may be granted on evidence that would be

Mode of stating facts in affidavit.

insufficient to warrant a final recovery. But, in all cases, a prima facie case must be made out before an order of arrest can properly issue. Sachs v. Bertrand, 22 How. 95; S. C., 12 Abb. 433; Crandall v. Bryan, 5 id. 162; S. C., 15 How. 48; Whitlock v. Roth, 5 id. 143; S. C., 10 Barb. 78; 9 N. Y. Leg. Obs. 95; 3 Code R. 142; Adams v. Mills, 3 How. 219.

Facts stated generally, as that the cause of the action is one of those mentioned in section 179 of the Code, will be clearly insufficient. Pindar v. Black, 4 How. 95; S. C., 2 Code R. 53. The affidavits to authorize an order of arrest for fraudulent representations, whereby the defendant procured the sale and delivery of personal property, must not only set forth the particular statements or representations made in order to obtain the property, but must also set forth in what respects they are false. Draper v. Beers, 17 Abb. 163.

For the form and contents of an affidavit to procure an order of arrest under subdivision 4 of section 179 of the Code, see Smith v. Jones, 4 Rob. 655.

And, in an action for a malicious prosecution, the facts which are relied on as 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 an order of arrest is made, to draw the proper conclusions of law. Vanderpool v. Kissam, 4 Sandf. 715. See Gould v. Sherman, 10 Abb. 411. So, where the affidavit states generally that the defendant has removed or disposed of his property, with intent to defraud his creditors, facts and circumstances to warrant such a conclusion must be stated. Frost v. Willard, 9 Barb. 440; Courter v. McNamara, 9 How. 256. See Furman v. Walter, 13 id. 348. Setting forth in an affidavit that the defendant had charged the plaintiff with theft, without alleging that such charge was false, will not justify the issuing of an order of arrest, as the affidavit does not show a cause of action. Adams v. Mills, 3 How. 219. And as to the practice before the Code, see Ex parte Robinson, 21 Wend. 672; Smith v. Luce, 14 id. 237.

In ordinary practice, a plaintiff desiring the arrest of a defendant should base his application for the order upon affidavits setting forth facts showing a right of arrest under some one of the subdivisions of section 179 of the Code. He should frame his complaint in accordance with the strict rules of pleading, and should carefully avoid the insertion of any allegation not