Affidavit of fraud in contracting a debt. Affidavit of Fraud in Contracting a Debt. (Title of cause.) (Venue.) A. B., the above-named plaintiff, being duly sworn, says: I. That he has commenced an action against the above-named Y. Z. in the supreme court, to recover a debt due this deponent, from the said Y. Z., to the amount of dollars, for the following goods sold and delivered by this deponent to the said Y. Z. (describe goods). II. That the said Y. Z. was guilty of a fraud in contracting the said debt. day of III. That the said debt was contracted as follows: That on or about the last, the said Y. Z. requested this deponent to sell him the above-described goods on credit; that, for the purpose of inducing this deponent to sell such goods on credit, the said Y. Z. then and there falsely and fraudulently stated and represented to this deponent that he, the said Y. Ž. (set forth the exact representations). That this deponent believed such statements to be true, and was thereby induced to sell and deliver, and did sell and deliver, to the said Y. Z., upon credit, the said goods, as requested by him, and that, except for such statements and representations, this deponent would not have made such sale and delivery as aforesaid. IV. And this deponent further alleges, that all such statements and representations were false and untrue, when so made, to the knowledge of the said Y. Z., and that the said Y. Z. made the same with intent to defraud this deponent by obtaining said goods upon credit, with intent not to pay for them. (Specify every fact and circumstance known to the deponent which will tend to show that the representations of the vendee were false and fraudulent to the knowledge of the said vendee, and were made for the purpose of obtaining the goods with intent not to pay for the same.) (Jurat (Signature.) Affidavit of Fraudulent Disposition of Property. (As in preceding forms, to statement of cause of action).* That on the day of 18 Y. Z., the defendant, made and delivered to this deponent his certain promissory note in writing, of which the annexed is a copy. II. That at the time of making such note, and for some time prior thereto, said Y. Z. was carrying on business in in said county, as : III. That on the day said note became due, to wit, on the day of 18 this deponent called at the store of the said Y. Z., in and presented said note to him and demanded payment thereof. That defendant declined to pay the said note Waiver of defects-Filing of affidavits. at that time, but requested deponent to call again in three days, to wit, on the and get his money. day of IV. That on the day last mentioned, deponent again called as requested and found one M. N. in possession of said store, who then stated to this deponent that, on the preceding day, the said Y. Z. had sold the store and all the goods therein to the said M. N., for which the said M. N. had paid to the said defendant the sum of dollars; and the said M. N. exhibited to deponent the bill of sale thereof executed by the defendant. V. That said Y. Z. was not present at the said store, and as this deponent is informed and believes, has not been present thereat since the day of sale, and that deponent has made diligent search for the said Y. Z., at his recent abode in elsewhere, but is unable to find him or to learn of his whereabouts. and VI. That the said Y. Z. has no other property in this State to the knowledge of this deponent, and that, as this deponent believes, the said Y. Z. has so disposed of his property with intent to defraud his creditors. VII. That this deponent has commenced, etc. (as in preceding forms). (Jurat.) (Signature.) e. Waiver of defects. It was formerly a rule of practice that all defects in the affidavit upon which an order of arrest was based were waived by the giving of bail. Stewart v. Howard, 15 Barb. 27; Dale v. Radcliffe, 25 id. 333; S. C., 15 How. 71; Barber v. Hubbard, 3 Code R. 169; Code of 1849, § 204; Gaffney v. Burton, 12 How. 516. This rule no longer exists, and since the amendment of section 204 of the Code in 1858, a motion to vacate an order of arrest may be made after the defendant has perfected bail, and at any time before judgment. Knickerbocker Life Insurance Co. v. Ecclesine, 6 Abb. N. S. 9; Wicker v. Harmon, 21 How. 462; S. C., 12 Abb. 476, sub nom. Wickes v. Harmon. It should be noticed that there is a wide distinction between a waiver of an irregularity arising from an arrest of a party temporarily privileged, and a waiver of a jurisdictional defect in the order itself. In the first instance the exemption is a mere personal privilege, of which the party may or may not avail himself at his option, and an omission to assert this privilege while the exemption exists will be held a waiver of the right. f. Filing of affidavits. It is the duty of the sheriff to file with the clerk the original affidavits on which an arrest is made, Security by plaintiff-Who to be sureties. within ten days after the arrest. Rule 6, Supreme Court. See also Rule 8, id. Section 6. Security by plaintiff. a. Form of security. Before an order of arrest can issue, the plaintiff is required to give a written undertaking, 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 $100. If the undertaking be executed by the plaintiff without sureties, he must annex to the undertaking 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. Code, § 182. This security must be given before the court can acquire jurisdiction to issue the order of arrest. Without it an order would be void. Newell v. Doran, 21 How. 427. See Rule 5, Supreme Court. b. Who to be sureties. It is a matter within the discretion of the court, whether sureties shall be required on the undertaking given by the plaintiff or not, and also to determine as to the sufficiency of the security. If an undertaking executed by one surety is deemed sufficient by the court, no more can be required. The only restriction upon the discretion of the court is, that if security be required at all, it shall be in the form of a written undertaking signed by one or more sureties. Courter v. McNamara, 9 How. 255; Ward v. Whitney, 8 N. Y. (4 Seld.) 442. It is not even essential that the plaintiff or his agent should sign the undertaking, where other sureties are required; and the former rule to the contrary is abrogated. Askins v. Hearns, 3 Abb. 184; Bellinger v. Gardner, 2 id. 441; S. C., 12 How. 381; Courter v. McNamara, 9 id. 255; Leffingwell v. Chave, 19 id. 54. And where a foreign government is plaintiff, the undertaking may be signed by the accredited minister with such other sureties as the court may require. Republic of Mexico v. Arrangoiz, 5 Duer, 634; S. C., 11 How. 1; 3 Abb. 470. The undertaking may be executed by any person who can prove to the satisfaction of the court, by affidavit or otherwise, that he possesses the requisite property qualifications. To this rule there is but one exception. In no case can an attorney be surety on any undertaking. Rule 8, Supreme Court. Undertaking on obtaining order of arrest. c. Acknowledgment. Whenever a justice or other officer approves of the security to be given in any case, or reports upon its sufficiency, it shall be his duty to require personal sureties to justify, or, if the security offered is by way of mortgage on real estate, the required proof of the value of such real estate. All bonds and undertakings, and other securities in writing shall be duly proved, or acknowledged, in like manner as deeds of real estate, before the same shall be received or filed. Rule 9, Supreme Court. The affidavit of jurisdiction should be annexed to the undertaking and filed with it. Van Wezel v. Van Wezel, 3 Paige, 38. d. Approval. The approval of the judge or justice must in all cases be indorsed on the undertaking, and where the undertaking is not so indorsed, the order may, on motion, be vacated with costs. Newall v. Doran, 21 How. 427. Undertaking on Obtaining Order of Arrest. (Title of cause.) WHEREAS, The plaintiff in the above-entitled action has made, or is about to make, application for an order to arrest the defendant therein. Now, therefore, we, A. B., of pation occupation by occupation and C. D., of , by occu , by county of , county of and G. H., of , county of do hereby undertake that if the defend ant 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 of dollars. day of STATE OF NEW YORK, (Signatures.) On the in the year one thousand eight hundred and seventy before me personally came A. B., C. D. and G. H., above named, to me known to be the individuals described in, and who executed the above undertaking, and severally acknowledged that they executed the same. (Signature.) A. B., C. D. and G. H., being severally duly sworn, say, each for himself, that he is a resident and holder within this Separate affidavits - Indorsement of judge's approval-Service-Filing. State, and worth the sum of liabilities, exclusive of property exempt from execution. Subscribed and sworn to before me this 187 . (Jurat.) dollars, over all his debts and day of (Signatures.) Justification-Separate Affidavits. A. B., being duly sworn, says, that he is a resident and holder within this State, and worth the sum of dollars over all his debts and liabilities, exclusive of property exempt from execution. Subscribed and sworn to before me this 187 . (Jurat.) day of (Signatures.) Indorsement of Judge's Approval. I approve of the foregoing (or within) undertaking and of the sufficiency of the surety therein. (Date.) (Signature.) e. Service. It is not necessary to serve the original, or a copy of the undertaking, on the defendant. A copy of the affidavit on which the order of arrest was granted, and a copy of the order of arrest are the only papers served on the defendant at the time of the arrest. f. Filing. But it is the duty of the plaintiff's attorney to file forthwith, with the clerk of the court, all undertakings given upon procuring the order of arrest, with the approval of the judge or justice taking the same indorsed thereon. "A failure to perform this duty gives to the defendant a right to move the court to vacate the proceedings, with costs, as if no undertaking had been given. Rule 5, Supreme Court; Newell v. Doran, 21 How. 427. g. Amendment. But when it appears that through inadvertence the attorney has omitted to file the undertaking with the clerk, the court may relieve the plaintiff with or without terms. Leffingwell v. Chave, 19 How. 55; S. C., 10 Abb. 472; 5 Bosw. 703; Brush v. Wielursky, 36 How. 253; Rice v. Whitlock, 15 Abb. 419. And where there has been an omission to acknowledge the undertaking as required by rule 9, the proceedings may be |