Arrest.

a preponderance of evidence either by other witnesses or by the statement of other matters to confirm the defendant's denial. (Phillips agt. Benedict, Ante, 265.)

5. An order of arrest cannot be vacated on the ground that an action has been heretofore instituted in a foreign tribunal (Canada,) against the defendant for the same cause, in which the plaintiff had the command of all the remedies by arrest or otherwise, it not appearing that any arrest was ever made there. (Arthurton agt. Dalley, Ante, 311.)

6. Where it appeared that the money received by the defendant for the purpose of investing in the purchase of lands in Canada, was received as the agent or trustee of the plaintiff, in a fiduciary capacity, and a breach of duty by the defendant was shown by a decree or judgment against him in a court in Canada, held sufficient to sustain an order of arrest here for the same cause. (Id.) 7. The defendant cannot avail himself of the statute of limitations in moving to vacate an order of arrest, where he has not set it up in his answer. (Id.)

8. Where a judgment or decree of a foreign tribunal (Canada) shows that it was for funds embezzled or misapplied by the defendant acting in a fiduciary capacity, the plaintiff may rely upon the original cause of action, in bringing his action here, and causing the defendant's arrest. The plaintiff is not concluded by the decree from charging the defendant with embezzlement or breach of trust, although he might be as to the amount of the moneys embezzled or misapplied. (Id.)

9. It seems, that in such a case, if the plaintiff was estopped by the record from going behind it to the cause of action upon which it was founded, he would not be precluded from availing himself of the provisional remedy in an action upon such record. (Id.) 10. Where the plaintiffs agreed to sell to one of the defendants three promissory notes at a stipulated price, and permitted him to take them from their office without exacting payment, and nothing said about giving credit; that said defendant agreed to sell said notes to the other defendant, and permitted him to take them in the same way, and the latter forthwith sold and delivered the notes to bona fide customers, received the money, and appropriated part of it to his own use, and sent the remainder, with a note, through the first defendant to the plaintiffs,

Arrest.

Held, that both defendants were properly arrested and held to bail; it appearing that all the parties were note brokers, and the plaintiffs alleged that they never intended to give credit to the first defendant, and that it is the universal custom, usage and understanding among note brokers, and dealers in commercial paper in New York city, that the transfer of the paper and payment of the money therefor shall be simultaneous acts. (Robbins agt. Seithel, Ante, 366.)

11. An application under § 204 of the Code, to vacate an order of arrest on motion, must be made in the same manner as other motions are mrade, to wit: a motion to the court, and upon sufficient notice. (Rogers agt. McElhone, Ante, 441.) 12. A county judge having no power under the Code, to hear a motion as such, in an action pending in the supreme court, has no power to hear a motion on notice to vacate an order of arrest, granted by him in an action in this court. (Id.; see to the same effect Lancaster agt. Boorman, Ante, 421.)

13. The law will never authorize and justify a complaint and arrest for felony, on the ground of false representations, by the accused, when positive evidence of the truth of his representations is furnished by him to the complainants, or is so described that it can be easily ascertained. (Grinnell agt. Stewart, Ante, 478.) 14. Where on the trial there is sufficient proof of want of probable cause for the prosecution, malice may be inferred, and that question is a proper one to be submitted to the jury. (Id.)

See SHERIFF. (Gallarati agt. Orser, 4 Bosw., 94; and Metcalf agt. Stryker, 32 Barb., 62.)

15. Where on an affidavit stating positively a cause of action which per se authorizes the defendant's arrest, an order of arrest is granted, it cannot be vacated as a matter of course on affidavits merely denying such cause of action. (Cousland agt. Davis, 4 Bosw., 619.)

16. A defendant may be arrested in action for criminal conversation, on an affidavit stating the cause of action. (Straus agt. Schwarzwaelder, 4 Bosw., 627.)

See EXECUTION. (Kedenburgh agt. Morgan, 4 Bosw., 646.) 17. In an action against a sheriff for not delivering over a defendant in his custody, imprisoned on a judgment alleging fraud, it is not necessary that the complaint should aver that an order of

Assignments for the benefit of creditors.

arrest for the defendant was obtained-the necessary averments to show neglect of duty on the part of the sheriff are sufficient. (French agt. Willett, 4 Bosw., 649.)

18. In an action against a female, alleged to have fraudulently con

tracted the debt upon which the action is brought, no order of arrest can be obtained against her. (Wheeler agt. Hartwell, 4 Bosw., 684.)

19. The Metropolitan police act, which provides that "no person holding office under this act shall be liable to military or jury duty, nor to arrest on civil process, or to service of subpoenas from civil courts, while actually on duty," applies only to persons while actually on duty, except that the section confers an absolute unlimited exemption from military and jury duty, and a limited exemption "while actually on duty," in the other cases. (Squire's case, 12 Alb., 38.)

ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. 1. J., T. & S. were partners owing debts: J. sold out to T. & S. in good faith, and received from them upon the sale their note, endorsed by B. for their accommodation. T. & S. continued business awhile as partners and then failed, and made a general assignment in trust for their creditors, preferring this note, and providing for the payment pro rata, of the debts of the old and new firms,

Held, that the creditors of the old firm had no equity against the partnership property of the old firm in the hands of the new firm or their assignee; that the preference of the note was not fraudulent; that while partners are administering their own affairs their creditors have no lien upon or equity against the partnership effects. (Smith agt. Howard, Ante, 121.) 2. The right of partnership creditors to have partnership effects. applied in equity to their debts, is a right derived through the partners, and if they have no such right their creditors have

none.

Held, also, that the appropriation of the individual property of the partners to the payment of the partnership debts in preference to the individual delts, is not fraudulent or illegal. (Id.) 3. A provision in such an assignment authorizing the property of

Assignments for the benefit of creditors.

an insolvent debtor to be applied in part to the payment of the debt of another person, for which neither he nor his property is bound, in preference to his own debts, affords a conclusive presumption of an actual fraudulent intent. A creditor provided for by a prior clause in the assignment may avoid it by reason of such fraudulent intent. (Id.)

4. Equity will reform an assignment in trust for creditors, making preferences, where the draftsman has made a plain mistake in reducing to form the instructions or the expressed intent of the assignor, but not his silent intent. (Smith agt. Howard, Ante, 151.) 5. But such an instrument will not be reformed upon the answer of the defendants, when all the persons interested in the assignment are not parties to the action. 6. The § 274 of the Code, that the judgment may grant to the defendant any affirmative relief, does not apply to cases where the proper parties are not before the court, and can only be brought in by cross action. (Id.)

(Id.)

7. Evidence of mistake in reducing the assignment to writing is not admissible to explain away the fraudulent intent expressed upon the face of the instrument. (Id.)

8. The omission of a debtor, who makes a general assignment of his property for the benefit of creditors, under the act of 1860 (Session Laws, p. 594), to make and deliver to the county judge an inventory or schedule of his creditors, and the amount owing to each, &c., as required by the second section of that act, does not render the assignment void; the statute in that particular is merely directory. (Evans agt. Chapin, Ante, 289.) 9. A general assignment by a defendant of his property for the benefit of his creditors, does not deprive the defendant of the right to make a motion to vacate an attachment previously granted against him; his interest in the property is not entirely divested. (Dickerson agt. Benham, Ante, 343.)

10. It is well settled that a threat made by a debtor to his creditor to make an assignment of his property for the benefit of his creditors, is no evidence of an intended fraudulent disposition of his property, so as to authorize an attachment to issue against him. And this is so, although the debtor promised when the debt was created, to give the creditor collateral security for the debt, which he failed to do. (Id.)

Assignments for the benefit of creditors.

11. An assignment by a debtor of his property for the benefit of his creditors, is not invalidated because the debtor in his own estimation, or in fact, is solvent.

R., 23.)

(Ogden agt. Peters, 21 N. Y.

12. A direction in an assignment for the benefit of creditors, that the assignee "convert the assigned property into cash as soon as the same may conveniently and properly be done," is harmless and supererogatory. (Id.; see also Griffin agt. Marquardt, id. 121; Dunham agt. Whitehead, id. 131; Jessup agt. Hulse, id. 168.) 13. Associations organized under the general banking law, are within the provisions (1 R. S., 603, § 4,) prohibiting any incorporated company from making any transfer or assignment in contemplation of insolvency. (Robinson agt. Bank of Attica, 21 N. Y. R., 406.)

14. The payment of a debt to a bona fide creditor is prohibited by the statute, equally with a general transfer of property, or an assignment in trust for the benefit of creditors. A transfer is in contemplation of insolvency, as well where the insolvency actually exists as where it is anticipated. (Id.)

15. The appropriation by an insolvent firm, of partnership property, to the payment of the individual debts of one of the partners, is fraudulent and void. Consequently it avoids the deed of assignment. (Wilson agt. Robertson, 21 N. Y. R., 587; S. C., 19 How., 350.)

16. An assignment for the benefit of creditors, under the act of 1860, must be duly acknowledged before delivery-proof of execution by a subscribing witness is insufficient. This statute directing the manner it shall be done, is affirmative, and must be pursued strictly in that respect. (Cook agt. Kelley, 12 Abb., 35.) 17. In an action by a creditor to reach the property of a judgment debtor, and to set aside an assignment alleged to have been fraudulently made, with intent to hinder and delay his creditors, and to make the assignee personally liable for bad faith in the management of the property, also alleging that the debtor had at various times made several other conveyances, in fraud of creditors; held, that these facts constituted but one cause of action, and that the several grantees or transferees were properly joined as defendants. (Reed agt. Stryker, 12 Abbott, 47; court of appeals.)