sheriff of the county of

commanding him to attach and safely keep the property of the defendant within his county, or so much thereof as should be sufficient to satisfy the demand of the plaintiff of dollars, with interest, and the said [naming sheriff], having applied for the adjustment and allowance of his compensation and fees on said attachment,

Now, on reading and filing the affidavits of J. McK. and A. E. W., and after hearing A. T., of counsel for the plaintiff, in opposition to said M. N.'s claim as sheriff as aforesaid, and H. T., of counsel for said sheriff,

I do hereby settle, adjust and allow the compensation and fees of said M. N., as sheriff of the [city and] county of

at the sum of dollars [and may add, which sum is made up of the following items, which are hereby allowed [inserting schedule], which I hereby certify and allow as reasonable and proper for his trouble and expenses, and all his services in the premises. [Date.]

[Signature of judge, with initials of title.]

7 The most that the judge can do, is to adjust the fees; an order for their payment is improper. Hall v. U. S. Reflector Co., 31 Hun, 609; aff'd, without opinion, in 99 N. Y. 634. See, however, under statute applicable to New York county, Tribune Assoc. t. Eisner, etc., Co., 49 App. Div. 141, 63 N. Y. Supp. 94.

8 As to what fees the sheriff can allow the auctioneer for selling, see Griffin v. Helmbold, 72 N. Y. 437.

As to poundage, and when allowable, see Jones v. Gould, 114 App. Div. 120; Lawlor v. Magnolia Metal Co., 2 App. Div. 552, 38 N. Y. Supp. 36; Treadwell v. Mead Mfg. Co., 75 App. Div. 478, 78 N. Y. Supp. 283; Esselstyn v. U. S. & G. Co., 82 App. Div. 474, 81 N. Y. Supp. 532; O'Brien v. Nat. Conduit, etc., Co., 43 Misc. 327, 87 N. Y. Supp. 131.

II. VACATING ORDER; DISCHARGING FROM ARREST; AND MODIFYING

1. The remedy; and power of the court.]-What has been said under the head of ATTACHMENT (pp. 1178, 1179) in respect to the nature of the remedy and the power of the court, applies equally to ARrest.

2. The cause of action; allegations extrinsic.] — In addition to what is there said respecting the cause of action, it should be observed that the New York statute as amended in 1886, the better to protect personal liberty, requires that the ground of arrest in a civil action be now always made one of the issues upon the trial of the action, with the single exception of apprehended evasion of the jurisdiction in a case in which such evasion might defeat a remedy in contempt (formerly ground for ne exeat). The requirement only applies to a trial, not to a judgment taken upon default.10

An action against a joint debtor, not served in a previous action in which judgment was recovered on service of his co-debtor, is regarded as an action on the original contract for the purpose of obtaining an arrest.11

In an action upon contract, the complaint need not, in averring

9 Since this amendment of N. Y. Code Civ. Pro., § 549, in 1886, uniting in one section, under the heading of cases "when the right to arrest depends on the nature of the action," actions on contract and actions for tort, with a requirement that the facts constituting the ground of arrest in actions on contract (which were formerly regarded as extrinsic to the action) must be alleged in the complaint and proved upon the trial,- it has been thought that the ground of arrest is always involved in or necessarily commingled with the cause of action, and can no longer be regarded as extrinsic to the cause of action, with the single exception mentioned in the text.

But it should be observed that the statute even as thus amended authorizes arrest "in an action upon contract" (§ 549, subd. 4); the action is still to be regarded as upon contract, notwithstanding the necessary allegations either of fraud in contracting the debt, or of intent to defraud creditors. It is not necessary that any damage should be claimed, as the result of the fraud. Hoboken Beef Co. v. Loeffel, 23 Abb. N. C. 93, 4 N. Y. Supp. 798, 16 Civ. Pro. Rep. 394.

It was said in McGuire v. Bauscher, 52 App. Div. 276, 65 N. Y. Supp. 382, that the court might disregard the allegations of fraud as surplusage and allow plaintiff to recover without proof thereof, where no arrest has been made and no right to arrest asserted. It is doubted, however, whether the allegations may be disregarded, for the command of the statute is to the contrary; but there seems to be no ground for denying to the court power to strike out the allegations of fraud, inserted merely to secure this remedy, when plaintiff had either not obtained the order or had been unable to execute it.

10 S. S. Richmond Hill r. Seager, 31 App. Div. 288, 52 N. Y. Supp. 985. 11 N. Y. Code Civ. Pro., § 1940.

Where defendant defaults in pleading, plaintiff may take judgment without application to the court, in a proper case, even though the judgment may be

that the defendant was guilty of a fraud in incurring the liability, allege the facts as in an action based upon fraud and deceit,12 although a mere averment in the words of the code section is insufficient.13

3. Waiver by joining inappropriate cause of action.]- The right to arrest upon any cause of action is waived if plaintiff joins, in the same complaint, a cause of action in respect to which the defendant is not liable to arrest.14

4. The practice.]—Application is made ex parte; and under the New York statute, it must be made to a judge of the court in which the action is brought, or to any county judge;15 except that,

1. In quo warranto an order to arrest an usurper who has obtained fees or emoluments, may be made by "the court or a judge;" 16 and,

2. In a case for specific relief, an order to arrest on the ground of apprehended evasion of jurisdiction, which might defeat the remedy, may be granted only by the court.17

It must be made on affidavit,18 and as a matter of precaution, a complaint should also be presented; but the better opinion is that the presentation of the complaint is not essential,1o except

enforced by execution against the person. S. S. Richmond Hill v. Seager, 31 App. Div. 288, 52 N. Y. Supp. 985.

The fraud, if alleged to be in the making of the contract, must not, in case of an executory contract, be in the way it has been performed. Mooney v. La Follette, 21 App. Div. 510, 48 N. Y. Supp. 460 (sale of first mortgage bonds for future delivery, and fraud in delivering second mortgage bonds).

12 Elwell v. Russell, 29 App. Div. 436, 51 N. Y. Supp. 964. (Sufficient if the complaint alleges that the representation was false and was fraudulently made for the purpose of obtaining the property from plaintiff.)

13 Harrisburg, etc., Co. v. Welsh, 26 App. Div. 515, 50 N. Y. Supp. 299. 14 Madget. Puig, 71 N. Y. 608; Am. Un. Tel. Co. v. Middletown, 80 id. 408; Knight t. Abell, 48 Hun, 605; McDonald r. Convis, 13 N. Y. Supp. 82. Held otherwise of a recovery of part of an entire claim. Fitch v. McMahon, 103 N. Y. 690, 3 N. Y. State Rep. 147. Volume 1,

15 The rule as to ordinary ex parte applications, is different.

p. 99.

16 N. Y. Code Civ. Pro., § 1949. As to what judge in such case, compare Id.. $$ 1949, 561, note 42, Vol. I, p. 99.

17 Id., 551.

18 Id., § 557.

19 See § 558. The contrary has been held in some cases of minor authority; but even if these cases were sound, the power of amendment ought to cure the defect in any case where there is substantial reason for not presenting the complaint.

when application for the order is made under § 549, subd. 4, in which case a complaint is essential.20

If a complaint is presented it must contain the allegations required by the statute,21 and set forth a cause of action.22 But it is not necessary that it expressly aver that defendant received the money or property in a fiduciary capacity, if facts are disclosed which show it,23 and if an amended complaint has been served that only can be considered upon the hearing of a motion to vacate.2 24

If the complaint be verified, it may be used as an affidavit for the purpose of the application.25

Inasmuch as it is not the function of a complaint to state evidence, the proof furnished by the complaint alone is rarely sufficient.26

5. Time for applying.] — The application may be made at the very commencement of the action, and for this purpose the issue of a summons is sufficient.2

27

It is not too late at any time before final judgment; nor even after final judgment in a case of apprehended evasion of the jurisdiction, to defeat specific relief (ne exeat). In any case the order may be made after verdict28 or decision.20

And it may

20 Engelhart Co. v. Benjamin, 2 App. Div. 91, 37 N. Y. Supp. 531. Compare, however, New Haven Web Co. v. Ferris, 125 N. Y. 364 (where the precise point, however, is not discussed), and Lewis v. Pollack, 85 App. Div. 577, 83 N. Y. Supp. 287 (where the action was probably for fraud and deceit).

21 Hough v. Folmsbee, 59 Hun, 148, 13 N. Y. Supp. 221, 20 Civ. Pro. Rep. 111 (warrant vacated because complaint in replevin failed to allege that sheriff could not find the chattel).

22 Saratoga Gas, etc., Co. v. Hazard, 55 Hun, 251, 7 N. Y. Supp. 844, aff'd, 121 N. Y. 677 (defects in the complaint cannot be supplied by affidavits, for the purpose of enabling it to state a cause of action); Barnes v. Goss, 98 App. Div. 1, 90 N. Y. Supp. 140.

23 Moffatt v. Fulton, 132 N. Y. 507, 28 Abb. N. C. 260, 22 Civ. Pro. Rep. 126. 24 Lewis v. Pollack, 85 App. Div. 577, 83 N. Y. Supp. 287.

25 N. Y. Code Civ. Pro., § 3343, subd. 11.

So held even before the present statute. Palmer v. Hussey, 59 N. Y. 647. And when the order could not be procured on the pleadings, an affidavit was necessary. Corwin v. Freeland, 6 N. Y. 560; s. P., McGilvery v. Morehead, 2 Cal. 607.

26 A general allegation of damage, sufficient in the to produce to the court reasonable proof of the fact. Div. 1, 90 N. Y. Supp. 140; Hubbard v. Richardson, 31 Supp. 35: Morton v. Chesley, 3 App. Div. 446, 38 N. People v. Snaith, 57 Hun, 332, 10 N. Y. Supp. 589. 27 N. Y. Code Civ. Pro., § 558.

28 Danenbaum v. Mandelbaum, 16 Wkly. Dig. 502. 29 Humphrey v. Hayes, 94 N. Y. 594.

complaint, is insufficient
Barnes v. Goss, 98 App.
App. Div. 520, 52 N. Y.
Y. Supp. 252. See also