FORM No. 935.

Fraud; in obtaining advances.63

[Substitute in Form 927.] II. That on

19

the defendant mailed a letter to this deponent, which was received by him on

to the deponent [

19 stating that he, defendant, would ship

hogs and calves], to be sold upon com

mission, and requested the deponent to send in return his check for the sum of dollars on the aforesaid, without fail, as an

advancement upon the said shipment.

Defendant then resided, and still resides, at county, State of

, and he informed the deponent by said. letter that he would make said shipment by way of the D. and L. R. Co., and that the deponent might expect the delivery of said shipment on 19 a copy of which letter is hereto annexed and marked Exhibit A.64

day,

That upon receipt of such letter from the defendant on

19, relying upon the belief that said property had been shipped upon that day, the deponent mailed to him a check upon the

Bank for said sum of

dollars, which check was received by

the defendant and the amount thereof, to wit, dollars, was paid to him by the said bank as appears by a copy of said check, and of deponent's indorsement thereon, hereto annexed.

That in the ordinary course of transportation said property, if shipped by defendant on said day of

on the morning of the

19 would

and the

have reached deponent in making such payment fully trusted and believed, upon the faith of defendant's letter, that said property had been shipped to them on said 19 the date on which they forwarded their check.

65

Deponent further alleges that the defendant never made said shipment to the deponent, but made such statement or representation with intent to defraud deponent out of

dollars.

Deponent therefore alleges that the defendant, by means of such false and fraudulent representations, induced the deponent to part with said sum of dollars, which sum defendant has

received by virtue of the deceit above stated.

A female, sued for breach of promise to marry, cannot be arrested. Siefke . Tappey, 3 Code Rep. 23; N. Y. Code Civ. Pro., § 553.

63 Or the action may be brought on the contract-see Form 942 (below) — (in which case there can be no question as to the right of attachment in case of non-residence, etc.); and then the fraud here alleged would avail as

ground of arrest, as fraud in contracting the liability; but to render it so available it must be alleged in the complaint.

64 The representations, if oral, must be stated; if written, the writing should be annexed, or quoted in full.

65 It is better to support such an allegation as this with grounds for belief.

FORM No. 936.

Deceit; through mercantile agency,66

[Substitute in Form 927.] — II. That, knowing the

Agency to be a concern in

city where the merchants in trade would inquire concerning the financial and pecuniary responsibility of a dealer who sought to buy goods of them on credit, the said defendant intending to buy goods on credit and not to pay therefor, made the following representation to said agency concerning his financial and pecuniary responsibility, well knowing the material parts thereof to be false. [Copy of statement.]

That thereafter, and upon receiving defendant's order for the goods so sold as aforesaid, and before he sold or delivered any part of the same, and in order to ascertain what credit, if any, might be safely allowed defendant for payment therefor, the plaintiff inquired of said Agency, in what was the financial standing and responsibility of the defendant; and in reply the said agency furnished plaintiff with the statement aforesaid 67

Thereupon the plaintiff, believing said representation to be true, and relying thereon, and deceived thereby, was induced to comply with said order of the said Y. Z., and in consequence thereof sold and delivered to him on credit [designating goods].

Said representations to said agency were false and known to defendant when he made them to be false; and in particular [here specify details, stating in what respect each was untrue].

the

[See Form 949.]

FORM No. 937.
Replevin.

FORM No. 938.

Fiduciary capacity; money received in trust, to pay over.68 [Substitute in Form 927.]

day of

II. That heretofore, and about the deponent in

19

at

66 In perhaps the larger classes of cases of deceit, the cause of action itself, as alleged in the complaint, furnishes the ground of arrest. See note to last Form and compare Forms 942 and 949 (below).

67 In Schulz v. Harris (N. Y. Daily Reg., May 12, 1884; abstr. s. c., Abb. An. Dig., 1884, Arrest, 3; Gen. Term opinion by Brady, J.), 1rom which the above Form was taken, it was held that a merchant who furnishes to a

commercial agency a statement of his affairs for the use of the company, is responsible to those whom it reached in due course, and who were influenced by it to sell to him on credit; and if these representations were false, an order of arrest founded upon them should be sustained.

68 This Form is sustained by Bull v. Melliss, 9 Abb. Pr. 58. See also the following cases:

be

trusted to the defendant, as agent of the plaintiff, and defendant received from deponent as such agent, the sum of longing to the plaintiff, to be by defendant forwarded and paid to the plaintiff in ; which said defendant promised and

agreed so to forward and pay to the plaintiff.

That the said defendant has wholly neglected and refused to pay to the plaintiff, or to forward to him, said sum so intrusted to the defendant, or any part thereof, although the same has been de manded by the plaintiff from the defendant; [show deponent's knowledge] and that said defendant has applied and converted the same to his own use [add evidence if practicable].

FORM No. 939.

The same; money received by a collecting agent.

[Substitute in Form 927.] II. That this plaintiff is engaged in business in the city of New York; that in the spring of 19 there being a large number of persons in various parts of this State indebted to this plaintiff in divers sums of money for goods theretofore sold and delivered to them by this plaintiff, this plaintiff employed the defendant to collect the same in the name and for the benefit of this plaintiff, and upon the agreement that he should pay the same over to this plaintiff upon collection [less only his commission of per cent].

That the defendant entered upon such employment, and proceeded to the collection of said sums of money; and has in fact collected a considerable portion thereof, as deponent is informed by several of said creditors, and by receipts therefor in the handwriting of said defendant, and in the possession of such creditors. That, in particular, he has collected dollars from M. N.;

who was indebted to this plaintiff in that amount. and has given to him a receipt therefor in the name of this plaintiff, as more fully appears by the annexed affidavit of the said M. N.69 And

Sending check to take up note; defendant collects check but does not pay note. Wandelt v. Burnett, 22 Misc. 315, 49 N. Y. Supp. 109.

Receipt of draft by banker for collection, not ground for arrest. Bussing v. Thompson, 15 How. Pr. 97.

Nor where credit is given to the agent as debtor. Robbins r. Falconer, 43 N. Y. Super. Ct. 363. 372; s. P., Goodrich v. Dunbar, 17 Barb. 644.

Nor where money is deposited from time to time in the course of ordinary banking business. Buchanan Farm Oil Co. v. Woodman, 1 Hun, 639.

Nor where defendant has a right to control the fund independently of any appropriation of it according to the instructions of the owners. McBurney v. Martin, 6 Robt. 502, 508.

But remittance to banker, with instructions to send a draft for the amount to a third person, is sufficient ground for the arrest. Johnson v. Whitman, 10 Abb. Pr. (N. S.) 111.

69 This affidavit is sustained by Stoll v. King, 8 How. Pr. 298. See also Ridder v. Whitlock, 12 id. 208; Albany Ins. Co. v. McAllister, 11 N. Y. Supp. 295 (insurance agent).

also, in like manner, the following sums of money from the following persons, who were, at the time of such collection, creditors of this plaintiff in such amounts, viz., from O. P. dollars [etc., specifying amounts and those paying as far as possible and annex their affidavits of payment, or excuse nonproduction.] That this plaintiff believes that he has collected other moneys from other creditors of this plaintiff; but exactly what amounts, and from whom, he is not able definitely to state.

. That this plaintiff, on the day of

of the defendant that he account to him for the money so collected, and pay the same over to him; but hitherto the defendant has wholly neglected so to do.71

FORM No. 940.

The same; proceeds of property sold on commission.72

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

deponent was the owner of a quantity of machinery,

etc., and other personal property, then contained in a building owned by the deponent, and known as the

in the town of

, county of

Mill, situated and State of New York, and the defendant, Y. Z., was engaged in business at said city of , and dealer in machinery and property

as a

of the kind so owned by deponent.

That deponent desired to sell the aforesaid personal property, and said Y. Z. called upon this deponent, at some time in the spring of the year 19 and requested this deponent to authorize him, as deponent's agent, to sell and dispose of the aforesaid property, upon commission.

That, at the request of said Y. Z., deponent delivered to him a portion of the said property, to wit: [designating articles] to sell the same for cash, as a commission merchant, and as deponent's agent, and to return the proceeds thereof immediately to this deponent, and for no other purpose whatever.

That said Y. Z. took and received said property for the purpose, and upon the agreement aforesaid, and for no other purpose, and faithfully promised the plaintiff to sell the same for the best price that could be obtained therefor, and to pay the avails of the same immediately to the deponent, after deducting his reasonable commission for such sale.

day of

19

That afterwards, and before the but upon what particular day or days he is not able to state, the said the defendant, sold said property, and received therefor, as deponent is informed and believes, the sum of dollars. [Annex affidavits of persons having knowledge of the sales, or excuse their non-production.]

That deponent subsequently, and on several different days, between the 19 and the

day of

day of

19 , demanded of said Y. Z. the moneys he had so re

Refinery v. Dayton, 70 N. Y. 486 (order sustained).

Conversion of proceeds of promissory note by note-broker. Robbins v. Seithel, 20 How. Pr. 366. S. P., Wolfe

r. Brouwer, 5 Robt. 601. See also Continental Bank v. De Mott, 8 Bosw. 696; German Bank v. Edwards, 53 N. Y. 541; Prouty v. Swift, 51 id. 594: Morange r. Waldron, 6 Hun, 529; Buchanan Farm Oil Co. v. Woodman, 1 id. 639; Standard Sugar Refinery v. Dayton, 70 N. Y. 486; Roberts v. Prosser, 53 N. Y. 260, rev'g 4 Lans. 369.

But where the character of the liability has been changed, as by a settlement and the giving of a note, the agent is no longer liable to arrest. Alliance Ins. Co. v. Cleveland, 14 How. Pr. 408; Shipman v. Shafer, 14 Abb. Pr. 449; Kelly v. Scripture, 9 Hun, 283; Nelson v. Blanchfield, 54 Barb. 630.

Unless such settlement is procured through fraud. Spence v. Baldwin, 59 How. Pr. 375.

But acceptance of bonds merely as security for a demand against such agent, does not preclude arrest. Dubois v. Thompson, 1 Daly, 309.