That deponent has made diligent search for defendant at his recent abode at and elsewhere, but is unable to find him, and believes that with intent to defraud his creditors, he has disposed of his property, and has departed, or is about to depart, or conceals himself [state more fully what inquiries made, and of whom, and answers].

FORM No. 944.

Undertaking on arrest78 (except on replevin).

[Title of court and action.]

WHEREAS, the above-named plaintiff has applied or is about to apply in the above-entitled action for an order of arrest against the above-named defendant Y. Z., in one of the cases provided by law:

Now, THEREFORE, we, the undersigned79 C. D., of No. street, in the city of county of and State of New York, and E. F. [stating residence as above], hereby undertake, jointly and severally, pursuant to the statute, that if the abovenamed defendant recovers judgment herein, or if it is finally decided that the plaintiff was not entitled to the order of arrest, the plaintiff will pay all costs which may be awarded to the defendant [or, to each or any of the defendants81], and all damages which he [or, which they or each or any of them] may sustain by reason of the arrest, not exceeding the sum of [at least one

82

78 Security is indispensable (Newell v. Doran, 21 How. Pr. 427), except in case of public action for breach of official trust (N. Y. Code Civ. Pro., § 559), or in case of apprehended evasion of jurisdiction such as would formerly be the ground for ne exeat. Id., § 560. In the latter case it is provided that the undertaking be in such form as the court prescribes; an undertaking accepted by the judge presiding is sufficient. Ensign v. Nelson, 21 Abb. N. C. 321. For the general principles applicable to undertakings, see Vol. I, pp. 25, 448. A defect is amendable. Irwin v. Judd, 20 Hun, 562; Pember v. Schaller, 58 How. Pr. 511. Even after motion to vacate on that ground. Bauer r. Schevitch, 11 Civ. Pro. Rep. 433. Contra, Bondy v. Collier, 13 Misc. 15, 33 N. Y. Supp. 996, 2 Anno. Cas. 28.

79 There must be two or more sureties (N. Y. Code Civ. Pro., § 559), unless one is a fidelity or guaranty

80

company. Vol. I, title, UNDERTAKINGS, paragraph 13, p. 455.

It is not essential that plaintiff also sign. N. Y. Code Civ. Pro., § 811; Vol. I, p. 455. His signature does not vitiate (O'Shea v. Kohn, 33 Hun, 114, aff'd, 97 N. Y. 649), but he cannot sign in place of a surety. Perry v. Smith, 9 N. Y. St. Rep. 728.

80 The sureties are liable, if the order is vacated on the papers upon which it was granted, and although no trial of the action has been had. Krause . Rutherford, 45 App. Div. 132, 60 N. Y. Supp. 1047.

81 Bauer v. Schevitch, 11 Civ. Pro. Rep. 433.

82 See, as to extent of the liability of the sureties, Krause v. Rutherford, supra; Bamberger v. Kahn, 43 Hun, 411; Lazzarone v. Oishei, 2 Misc. 200; Spang v. Patterson, 23 Misc. 536, 52 N. Y. Supp. 678, 5 Anno. Cas. 251; Sutorius v. North, 13 N. Y. Supp. 557, 20 Civ. Pro. Rep. 162.

tenth the aggregates amount of bail required by the order, and not less than $250].

[Signatures.] [Acknowledgment or proof, as in Form 822; Approval indorsed, as in Form 824; Affidavits of sufficiency, as in Form 823.]

[The copy of the undertaking should contain all indorsements and additions.]

FORM No. 945.

Order (by judges6) for arrest (for all cases except replevin and ne exeat). [Title of court and action.]

To the sheriffs of the county of

[Or, except in the City Court of New York.88 To the sheriff of any county of the State of New York:]

It appearing to me [in quo warranto may say, to the court, if a court order is preferred] by the affidavit of A. B., verified the 19 89 and by the verified complaint in this action, that a sufficient cause of action exists in favor of the above-named plaintiff* against the above-named defendant Y. Z.,

and that the case is one of those mentioned in section 54991 [or, in quo warranto as to office, say, section 1949] of the Code of Civil Procedure; and that the ground of the arrest is t [here concisely indicate the ground of arrest, as for instance by either of the following clauses, or by two or more combined] the action is to recover a fine [or, a penalty].

92

[Or, that the action is to recover damages for a personal injury-or, an injury to property.]

[Or, that the action is to recover damages for a breach of promise to marry.]

[Or, that the action is to recover damages for misconduct or neglect in office or, in a professional employment.]

[Or, that the action is to recover damages for fraud or deceit.] [If the action is to recover a chattel, see Form 952.]

[Or, that the action is to recover for money received by defendant as a public officer - or, in a fiduciary capacity.]

[Or, that the action is to recover property-or, damages for the conversion or misapplication of property embezzled or fraudulently misapplied by a public officer or mention other persor. in a fiduciary capacity.]

[Or, if a public action for peculation, as in N. Y. Code Civ. Pro., 549, subd. 3.]

[Or, that the action being on contract, express or implied, other than a promise to marry, the defendant has been guilty of a fraud. in contracting or incurring the liability—or, the defendant has since the making of the contract, or in contemplation of making the same, removed or disposed of his property with intent to defraud his creditors—or, is about to remove or dispose of the same with intent to defraud his creditors.]

And the plaintiff having duly given the undertaking required by law93 [if amendment of complaint was asked for, add, and plain

91 It is convenient practice, but not essential, to cite the section of the statute and its subdivision relied on. Tracy v. Veeder, 35 How. Pr. 209, 50 Barb. 70.

92 This is required by N. Y. Gen. Rule No. 13.

Statement in the language of the statute is sufficient, as for instance, that it is for the appropriation of money received in a fiduciary capacity. Bowman v. Gates, 11 Repr. 744. Or, "for the conversion of money embez

zled or fraudulently misapplied by the defendant in the course of his employment as attorney." Quail v. Nelson, 39 App. Div. 18, 56 N. Y. Supp. 865.

Two grounds cannot be stated in the disjunctive. Cronin v. Crooks, 143 N. Y. 352. And see notes 27-29 to Form 835, p. 1204.

93 Omit this clause in an action by the people, they not being required to give security.

94 See Form No. 927, paragraph 4, note 48, and Form No. 954.

tiff having been directed by an order of even date herewith, made before the granting of this order, to serve an amended complaint herein;

96

YOU ARE REQUIRED forthwith to arrest [name] the defendant in this action if he is found within your county, and hold him [or, hold each of them] to bail95 in the sum of dollars, and return this order, with your proceedings thereunder, as prescribed by law.97

[Date.]

[Signature of judge, with initials of title.98

[Signature and office address of],

Plaintiff's attorney.99

[Deliver to the sheriff the original order— or, if court order, a certified copy · annexed to the papers on which it was granted and the original undertaking; and furnish the sheriff a copy of all these papers for service on each one to be arrested.]

FORM No. 946.

Alias order of arrest.

[As in last Form, adding at the end, before date and signature] and you are required forthwith to return the original order heretofore made by me under date of 19 for such arrest.

95 Prescribing the form of undertaking which the sheriff is to take, is unnecessary, but not improper. Boucicault v. Boucicault, 21 Hun, 431, 59 How. Pr. 131.

96 The proper amount of bail has been greatly affected by the limited term of imprisonment under execution. See paragraph 5, p. 1306, MOTION TO REDUCE BAIL. It was formerly held proper that the amount of bail should approximate the probable recovery. People v. Tweed, 5 Hun, 382, aff'd, 63 N. Y. 202, less fully, 50 How. Pr. 26 (refusing to reduce bail from three millions where the action was for six millions).

Under the former practice in actions for a money demand on contract, bail was required in double the claim, unless the amount was large. Cromelines v. Beldens, 1 Wend. 107; Ballingall v. Burnie, 1 Hall, 237. In

other actions, the bail is altogether in the discretion of the court, and depends upon the character of the action and the position of the defendants; whether, for example, residents or transient persons, etc. Baker v. Swackhamer, 3 Code Rep. 248; Reigner v. Spang, 5 App. Div. 237, 39 N. Y. Supp. 127.

97 The return is prescribed by N. Y. Code Civ. Pro., §§ 577 and 578, under which the time may vary somewhat according to the proceedings. See also Id., § 102.

FORM No. 947.

Affidavit to obtain order of arrest by reason of apprehended evasion of the jurisdiction. (Ne exeat.)1

[As in Form 927, alleging cause of action by reference to the complaint, and corroborating details with sources of information, etc.la]

day of

III. [Allege ground for apprehending evasion of jurisdiction for instance, thus: in action for accounting:2] That the said Y. Z. intends to leave the State of New York, and to proceed to England, where he intends to settle and reside; and that the said Y. Z., on or about the last, informed one M. N. to that effect, as by the annexed affidavit of the said M. N. appears. And this deponent verily believes that if the said Y. Z. goes out of this State of New York, he will not return, but will evade his duty to account and the power of the court to compel him to do so, and thereby this deponent will be in great danger of losing his said debt.

III. [In action for divorce] That this action is brought to obtain a divorce from the defendant by reason of the adultery alleged in said complaint; that the defendant is about to depart from this State, and that he has, as deponent is informed and believes, no present intention of returning to this State, except, possibly to pass through it; that it is announced that his engage

1 In general, arrest in cases formerly affording ground for ne exeat, namely, anticipated evasion of the jurisdiction, is not allowed except in cases for equitable relief. Brownell v. Akin, 6 Hun, 378; Gordon v. Cox, 11 N. Y. Supp. 5, 18 Civ. Pro. Rep. 291; Allen v. Hyde, 2 Abb. N. C. 197; Bonesteel v. Bonesteel, 28 Wis. 245; Drover . Bayer (Eng. Ct. of App.), 28 Wkly. Rep. 110. Or divorce, alimony, etc. Boucicault v. Boucicault, 21 Hun, 431, 59 How. Pr. 131; Denton v. Denton, 1 Johns. Ch. 364. Or for an accounting, where defendant admits less than plaintiff claims. Story, Eq. Jur., § 1471; Ensign v. Nelson, 21 Abb. N. C. 321.

Wherever there is concurrent jurisdiction, the remedy is clearly proper. Mitchell v. Bunch, 2 Paige, 606, 619, 22 Am. Dec. 669. And the better opinion is that under the Code procedure, if in any case a judgment in what is called a common-law action can be enforced by proceedings for

contempt, it is within the power of the court to grant the order.

1a It is not necessary to re-state facts sufficiently proven by the complaint. Clayton v. Mitchell, 1 Del. Ch. 32.

The Code procedure does not require the complaint to ask for arrest as a part of the relief. The practice adopted in chancery in respect to matters of account (1 Hoffm. Ch. Pr., 90, 91) being now properly extended to all cases. But in those jurisdictions where it is thought necessary to ask it in the complaint, amendment may be allowed for the purpose. Lube, Eq. Pl. (Sumn. & W. ed.), p. 66.

2 An arrest is properly obtained in an action for an accounting. Ensign v. Nelson, 21 Abb. N. C. 321.

3 From Boucicault v. Boucicault, 21 Hun, 431, 59 How. Pr. 131. A complaint is essential to granting the order. Lichstral v. Lichstral, 38 Misc. 331, 77 N. Y. Supp. 900.