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be made even after judgment once entered has been opened and allowed to stand as security pending another trial.30 Stay of proceedings for the purpose of making a case does not prevent the application.31

6. Prudential rules for drawing arrest papers.] - The rule stated on pages 1181-1184, in respect to the allegations in the complaint and affidavit for the purpose of obtaining an attachment, need not be repeated, but apply with enhanced strictness to arrest.32 It is always better to apply upon a sworn complaint, and to support all the allegations, whether relating to the cause of action or to the ground of arrest, by evidence in some detail, and positively sworn to so far as practicable.3

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Particular care should be taken to state the defendant's name correctly.3 But fictitious names or descriptions may be used when necessary on the same grounds on which they are allowed in the summons.35

7. Several and separate fraud, etc.] - The master's respon

sibility for the tort of his servant makes him liable to the remedies afforded to the injured party, including imprisonment.36 But there has seemed to have been a distinction created when the liability of one held per infortunam is based upon fraudulent representations of an associate or agent.

The fraud, which is a ground of arrest is actual fraud. A

30 Mott v. Union Bank, 38 N. Y. 18.

31 Lapeous v. Hart, 9 How. Pr. 541.

32 For instances where allegations in affidavits were rejected under application of the rules stated under attachment, see Bornstein v. Harding, 16 N. Y. Supp. 91; Finlay v. De Castroverde, 68 Hun, 59, 22 N. Y. Supp. 716; Markey v. Diamond, 1 Misc. 97, 20 N. Y. Supp. 847; Rolker v. Gonzalez, 25 App. Div. 96, 48 N. Y. Supp. 1015, 5 Anno. Cas. 217; Burns v. Boland, 70 App. Div. 555, 75 N. Y. Supp. 700; Price v. Levy, 93 App. Div. 274, 87 N. Y. Supp. 740. 33 See paragraph 4, supra.

34 Formerly it was held that an arrest of a person by a wrong name could not be justified, though he was the person intended, unless he were as well known by one name as the other. Griswold v. Sedgwick, 6 Cow. 456, 1 Wend. 126; Mead v. Haws, 7 Cow. 332; Holley v. Mix, 3 Wend. 350; Scott v. Ely, 4 id. 555; Gurnsey v. Lovell, 9 id. 319.

But since the Code it is not necessary that the name of the party to be arrested should be stated, if unknown; he may be designated as the real defendant in the suit or proceeding, and whose name is not known; or by any name. Pindar v. Black, 4 How. Pr. 95.

35 See volume I, chap. IV, art. I.

36 See Ossman v. Crowley, 101 App. Div. 597, 92 N. Y. Supp. 29; Davids v. Brooklyn Heights R. R. Co., 104 App. Div. 23, 93 N. Y. Supp. 285.

constructive fraud, or fraud in legal effect merely, is not enough.37

Hence a principal sued on a contract which his agent3 made by means of fraud, or a husband sued on one so made by his wife,39 is not liable to arrest unless it appears that he sanctioned the fraud.

So the liability of each of several co-partners to arrest depends on his own fault. Though the cause of action be joint, the ground of arrest for fraud in incurring the liability or in disposing of property is several; and while both partners are liable to judgment for the debt, one who is alone chargeable with false representations in contracting it, or fraud on creditors in endeavoring to evade paying it, is alone liable to an order of arrest.* 40

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Indirect sanction may, however, be enough, as where the agent used false representations which he had heard the principal use in another transaction, or where the principal, with knowledge of the fraud appropriated the fruits of it. But mere participation in the fruits of the fraud by a principal or partner13 ignorant of the wrong, does not render him liable to arrest in an action on the contract; to arrest such an one, there should be an action for a tort, after demand or notice, or whatever step may be necessary to put him in the wrong.

37 Matter of Holdforth, 1 Cal. 438. Thus a debtor who makes an assignment which, without any actual fraudulent intent on his part, is constructively fraudulent by reason of illegal provisions, is not thereby rendered liable to arrest. Same principle, Mann v. Chrestopulos, 87 App. Div. 222, 84 N. Y. Supp. 372.

38 Hathaway v. Johnson, 55 N. Y. 93; s. P., Claflin v. Frank, 8 Abb. Pr. 412; Tracy v. Veeder, 35 How. Pr. 209, 215; Ellison v. Hance, 44 App. Div. 296, 60 N. Y. Supp. 705.

39 Stewart v. Strasburger, 7 Hun, 337 (holding husband liable to arrest for fraudulent purchase by wife, it appearing that the goods were bought in his name and by his authority, and that he had the benefit of them; an order vacating his arrest was therefore reversed).

40 Witmark v. Herman, 44 N. Y. Super. Ct. 144 (holding false representations as to the responsibility of a firm, made with intent to defraud, good grounds of arrest of the partner making them).

Bacon v. Kendall, 49 N. Y. Super. Ct. 123 (holding partners innocent of the fraudulent representations, not liable to arrest).

Hanover Vulcanite Co. v. Nathanson, 38 Hun, 488 (holding one partner liable to arrest, in action on firm debt, where he withdrew and converted assets after injunction).

Contra, Matter of Benson, 11 Wkly. Dig. 394, 60 How. Pr. 314.

The principle stated in the text is the now generally accepted rule, though many earlier cases do not make the distinction.

41 Smith v. Frank, 2 Robt. 626.

42 Hathaway v. Johnson, 55 N. Y. 93.

43 Hitchcock v. Peterson, 14 Hun, 389.

FORM No. 927.

Affidavit to obtain order of arrest except in replevin― General Form. [Title of court and action.]

[Venue.]

A. B., being duly sworn, says:

I. That he is the plaintiff [or, one of the plaintiffs] above named [if partners, may add, who at all the times hereinafter mentioned were and still are copartners under the firm name of , carrying on business in ][or otherwise identify deponent, and state his relation to the case]."

[In case of action on contract, state cause of action, as thus:] II. That Y. Z., the above-named defendant, is justly and truly indebted to said plaintiff in the sum of dollars, as appears by the complaint herein, verified on the

19

day of

[and if any of its allegations material to the application are not positive, add: all of the allegations of which [except, etc.] are true to deponent's knowledge; continue with a statement of the evidence, and if any part depends upon a writing annex a copy; or, annex corroborating affidavits, which furnish evidence of the facts alleged; and add facts establishing amount of damage, if unliquidated.45 See paragraphs 4 and 6, pp. 1271, 1272, and Forms 928, 942, 943 (below)].

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[Or, when the action is for tort, state cause of action, as thus:] II. That on or about the day of 19 Y. Z., the above-named defendant, assaulted and beat said plaintiff, as appears by the complaint herein [referring to it and corroborating it as above; and submit or annex affidavits which furnish evidence of the facts as alleged and show malice, intent, want of probable cause or the like; also, submit evidence showing the amount of damage suffered. See Forms 928-941, post.]

44 A foreign corporation plaintiff need not show that it has obtained authority to do business in the State. Parmele Co. v. Haas, 171 N. Y. 579.

45 If only nominal damages are shown, no warrant should be granted. Morton v. Chesley. 3 App. Div. 446, 38 N. Y. Supp. 252. The allegation in the complaint of value or damage is insufficient as proof. Id.

46 Grimes v. Davison, 2 Abb. N. C. 457; Diad v. Shibley, 49 Misc. 315.

47 See paragraphs 4 and 6, pp. 1271, 1272, supra, and notes thereto. A general allegation of damage does not furnish any proof thereof. Hubbard v. Richardson, 31 App. Div. 520, 52 N. Y. Supp. 35. Nor an allegation of the worth of property without description of its kind and condition. Barnes v. Goss, 98 App. Div. 1, 90 N. Y. Supp. 140.

[In an action of either class:] III. That the above-entitled action is about to be commenced for said cause [or may say, upon said contract - or, for said tort or, to recover possession of said goods], and the annexed [or, accompanying] summons therein has been issued [or otherwise state the condition of the cause.]

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IV. [If the complaint has already been served and does not contain the allegations of the ground of arrest required by N. Y. Code Civ. Pro., § 549, say:] That the summons and complaint in this action were filed [or, served or both] on or about the day of 19 and that annexed hereto is a copy of the amended complaint verified the day of 19 " which plaintiff desires to file and serve, so as to conform to the allegations in respect to the ground of arrest required by law18 [and may add, if desired, facts excusing delay.]

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V. [State in detail any facts extrinsic to the cause of action and not already stated, necessary to bring the case within one of the classes in which the statute allows the arrest,49 and if any allegation involves intent to defraud,50 state facts evidencing it. See Forms 928 to 943 (below).]

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VI. [Whether suing on contract or for tort, may state any circumstances tending to show necessity of bail or proper amount, as thus: That the defendant is not a resident of this State, but resides at and is about to leave this State adding sources of information and grounds of belief. For allegation that he is a transient person whose residence is unknown see Volume I, Form 405, p. 684.]

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VII. That no previous application for an arrest of said defendant has been made in this action [except, etc.51]

[Jurat.]

48 Such amendment may be allowed without notice. N. Y. Code Civ. Pro., § 558, last clause.

It should be noted that the power to allow the amendment is expressed as conferred on "the court." If this word were to control, the judge making the order could not give leave for amendment, nor do the provisions of law empowering amendments in pleadings contemplate the giving of leave by a judge out of court; but it seems to me that a fair construction of the statute, in view of the context, "the court before making the order," empowers the judge granting the order of arrest to give the leave to amend.

[Signature.]

For order to amend, see Form 954. 49 In consequence of the amendments to §§ 549 and 550, in 1886, the facts extrinsic to the cause of action must now be alleged in the complaint, except when they are merely the grounds of fearing personal evasion of the jurisdiction for which a writ of ne exeat might have been granted at common law. See § 550.

50 Grimes v. Davison, 2 Abb. N. C. 457.

51 For the New York rule requiring this, see p. 1172 of this volume.

It is doubtful whether this state

ment is necessary. See, under ATTACHMENT, Form 828, note 5.

STATEMENTS OF CAUSE OF ACTION AND GROUND OF ARREST SUIT. ABLE TO INSERT IN FOREGOING FORM OF AFFIDAVIT FOR ARREST.

FORM No. 928.

Personal injury; 52 assault.

[Substitute in Form 927.] II. That on the

19 in

the county of of

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street, in the village of

State of

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the defendant Y. Z.,

with force and arms assaulted and violently attacked me without any provocation whatever, and with force and violence laid hold of me and [state result of the assault as though testifying, as:] knocked me down and struck, beat, kicked me and wounded and bruised me, by which I was made lame and sick, and disabled for the space of next ensuing from attending

and

to my affairs and doing any work at my business as a suffered great bodily pain and mental distress and was also compelled to expend dollars for medicines, medical care and

nursing [may state particulars as to loss in vocation.54]

FORM No. 929.

Cruelty55 (in action for limited divorce).

[Commencement and conclusion as in Form 927.]—I. I am the plaintiff and the wife of the defendant above named, who

52 Allowed by N. Y. Code Civ. Pro., $549, subd. 2. "Personal injury" is defined by § 3343, subd. 9, as including injury to the person either of plaintiff or another. Contra, before that definition, Ryall v. Kennedy, 41 N. Y. Super. Ct. 531, 52 How. Pr. 517. It includes an action by a wife against one who entices her husband from her. Breiman v. Paasch, 7 Abb. N. C. 249; S. P., Warner v. Miller, 17 Abb. N. C. 221.

Compare Groth r. Washburn, 34 Hun, 509 (holding, under Statute of Limitations, that a husband's action for a wife's loss of services is an action for injury to property).

The above Form is sustained by Pease v. Pendell, 57 Mich. 315, 23 N. W. Rep. 827; N. Y. Code Civ. Pro., § 549, subd. 2; Chitty's Forms of Pr. 387.

In cases of assault and battery,

libel, slander, etc., the damages being very uncertain, it is desirable to state fully the circumstances, showing an unprovoked offense, its malicious intent, and its aggravations.

53 It is desirable to state that defendant is a non-resident or transient person, if such be the fact. 1 Tidd. 172; Davis v. Scott, 15 Abb. Pr. 127; Pfluger v. Lescke, 4 Monthly L. Bul. 87.

54 Ehrgott v. Mayor, etc., of New York, 96 N. Y. 264; McNamara v. Village of Clintonville, 62 Wis. 207, 22 N. W. Rep. 472.

55 Supported by Gardiner v. Gardiner, 3 Abb. N. C. 1; Jamieson v. Jamieson, 11 Hun, 38; Schwartz v. Schwartz, 36 Misc. 487, 73 N. Y. Supp. 935.

For the rule of domicile in divorce, see 10 Abb. N. C. 333, note.

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