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In Pindar v. Black, 4 How. 95, it was decided that, in an affidavit of this nature, two things must be made to appear1, that a sufficient cause of action exists--and 2, that such cause of action is among those specified in sec. 179. It is not sufficient for the party merely to state, that his case is one of those mentioned in that section, the facts must be stated to show that it is so.
See Frost v. Willard, 9 Barb. 440, after cited under the head of attachment. It is not necessary, it would seem, for the party to state, in terms, that "an action has been or is about to be commenced,” though perhaps it would be better to do so. The same case is also authority as to the power of the court to grant a warrant to arrest an unknown defendant, which was there called in question.
The affidavit must be positive, and must show facts and circumstances, to evince the fraudulent intent alleged. Where, therefore, the affidavit on which an attachment was grounded, merely stated on the “information and belief” of the plaintiff, that “ the defendant was a fraudulent and absconding debtor," and that his property "was being conveyed away with intent to defraud his creditors," without offering any evidence, (even on information,) of any act of the defendant showing such fraudulent intent, a judgment obtained upon that attachment was reversed, with costs.-Camp v. Tibbetts, 3 C. R. 45. See, also, as to the sufficiency of such an affidavit, the case of Brophy v. Rodgers, 7 L. O. 152, before cited in this chapter, and, likewise, Frost v. Willard, 9 Barb. 440, above referred to. In Whitlock v. Roth, however, 5 How. 143, 9 L.O. 95, 3 C. R. 142, it was held, that " an order for arrest, may be obtained on an affidavit stating information and belief; but the nature, quality, and sources of the information must be disclosed, so that the judge's mind may have something to work upon, and he may be able to determine whether the belief is well founded or not." Good reasons, too, must be given why a positive statement cannot be procured.-See, also, Pomroy v. Hindmarsh, 5 How. 437; and Camman v. Tompkins, and Gilbert v. Tompkins, 1 C. R. (N. S.) pp. 12 and 16, subsequently cited on the analogous questions of injunction and attachment.
Where a sufficient cause of action has been set forth, special cause for requiring bail need not be proved, as under the former practice.--Baker v. Swaclchamer, 5 How. 251; 3 C. R. 248.
In reference to allegations as to the fraudulent disposition of his property by a defendant, and the necessity of averring that such disposition has been made“ secretly;" see Anon., 2 C. R. 51, before cited.
To give any precise form for an affidavit of this nature would be impossible, inasmuch as such affidavit must, of necessity, vary according to the circumstance of each particular application. One only caution appears necessary with reference to this, as to other similar cases; and this is, that, on all occasions, the gravamen of the charge against the defendant should be summed up in the exact words of the statute itself, and should be stated throughout, in accordance with that wording, so as to bring the case, in precise and definite terms, within one or more of the subdivisions of sec. 179. It is impossible to insist too strongly upon the expediency of strict attention being paid to this rule, in all questions, of whatever nature ; and, likewise, on the principles laid down in the foregoing decisions, particularly with reference to the clear and correct statement of the cause of action, being kept in mind on all occasions.
On applying for the order, the plaintiff must also be prepared with security, in compliance with the provisions of sec. 182 in that respect, which run as follows:
$ 182. Before making the order, the judge shall require a written undertaking on the part of the plaintiff, with or without sureties, to the effect, that if the defendant recover judgment, the plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum specified in the undertaking, which shall be at least one hundred dollars. If the undertaking be executed by the plaintiff, without sureties, he shall annex thereto an affidavit that he is a resident and householder or freeholder within the State, and worth double the sum specified in the undertaking, over all his debts and liabilities.
This undertaking must, under sec. 423, be filed with the clerk of the court, and must be duly proved and acknowledged, in compliance with rule 76 of the supreme court.
The form will be found in the Appendix.
In Leopold v. Poppenheimer, 1 C. R. 39, it was held, that no copy of this undertaking, need be served on the desendant at the time of the arrest. "When the officer issues an order of arrest, he, in effect, decides on the sufficiency of the undertaking, and such decision is 'res adjudicata.' The Code deprives
the defendant of any benefit of exception to the sureties in personam; the delivery, therefore, to him of a copy of the undertaking would be useless."
It seems, too, by the case of Manley v. Paterson, 3 C. R. 89, that the defendant is entirely without remedy, if the plaintiff's sureties omit to justify, or even on showing them to be insufficient or insolvent. The court even doubted whether" the judge had any right to refuse an order for arrest," where the sheriff had returned that the property was eloigned, "even if he was fully aware that the plaintiff had put in sham security." The
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rest him, and hold him to bail in a specified sum, and to return the order at a time and place therein mentioned, to the plaintiff or attorney by whom it shall be subscribed or endorsed.
The time of the return of this order not being fixed by special provision, should be inserted at some reasonable date. The first day of the succeeding term may, in the majority of instances, be a proper period to insert, but each case will be gov erned by its peculiar circumstances. The amount of bail required, must also be fixed. In ordinary cases, the proper sum will be double the amount of the claim. The matter rests, however, in the discretion of the judge, and may be modified by him accordingly.-See Baker v. Swackhamer, 5 How. 251, 3 C. R. 248, hereafter cited.
It has been held that an arrest cannot be made on execution, unless an order has been obtained under this section.-Squire v. Flynn, 8 Barb. S. C. R. 169; 2 C. R. 117. See, however, this point fully considered under the head of Execution.
The affidavit, undertaking, and order, having been thus prepared, and submitted to the judge to whom application is made, his signature must be obtained to the latter, if his decision be to grant it. The undertaking having been filed as above directed, the affidavit and order of arrest must thereupon be delivered to the sheriff, as provided by sec. 184, with all neces
sary instructions, to enable him to discover and arrest the defendant. With this delivery, the duty of the plaintiff's attorney is completed, and that of the sheriff commences. In cases where immediate dispatch is necessary, it may be convenient to prepare and hand to the sheriff, with the originals, copies of the affidavit and order, which, under the same section, it is his duty to deliver to the defendant at the time of the arrest. In strictness it is the sheriff's duty to make them, but the necessary delay for that purpose, however short, might possibly, in some cases, involve inconvenience.
In Keeler v. Belts, 3 C. R. 183, it was held, that an omission on the part of the sheriff, to serve a copy of the order of arrest, as thus directed, is a defect which may by cured by amendment. It is, however, clearly an irregularity, and, in that case, costs were imposed as a condition of such amendment.
The arrest itself is to be made in the usual manner, as prescribed by sec. 185. The liability of the sheriff, in respect of an escape or otherwise, is expressly provided for by sections 201 and 202. If a deposit be made, or bail be given, and justified as hereafter noticed, the sheriff's liability is at an end; but, if not, he is, himself, liable as bail. He may, however, discharge himself from that liability, by the giving and justification of bail, in the same manner as provided with respect to the defendant himself, at any time before the latter is charged in execution. His liability, as above, may be enforced, by proceeding against him or his sureties, in the usual manner. If, on the other hand, bail be put in on the part of the defendant, and such bail, or others, fail to justify, they will, under sec. 203, be liable to this sheriff, by action, for any damages which he may sustain by that omis
The statutory provisions, as to the granting of the liberties of the jail to prisoners, and also in relation to escapes, will be found in articles 3 and 4 of title VI. chap. VII. part III. of the Revised Statutes, 2 R. S. 432 to 439. Tanner v. Hallenbeck, 4 How. 297, is authority that the subsequent death of an escaped prisoner, even before the commencement of the action, does not operate as a discharge of the sheriff, but that, on the contrary, such cause of action is complete when the escape takes place, liable, however, to be defeated by the voluntary return or recapture of the debtor, before suit brought. The sheriff takes the risk of the party's death, as it had there happened.
See, also, Hutchinson v. Brand, 6 How. 73, a case of escape upon execution, which holds that no defect or irregularity in the process, under which a prisoner is arrested, can be alleged by the sheriff, as an excuse for an escape. Unless the process be actually void, and not merely voidable on application of the parties, he remains answerable. In the same case, it is laid down that, in an action for escape, the sheriff is liable for the whole judgment and costs, but not for interest on the former.
If the sheriff fail to arrest the defendant within the time prescribed by the order, an amendment should be applied for on the same papers, under the powers conferred by sec. 174.
On the arrest taking place, the first point to be looked into by the defendant is, in relation to the validity of the order of arrest, and also as to the amount of the bail thereby required to be given ; as, if the order be informal, or if the bail demanded be excessive, relief may be obtained by him, by means of a special application to the court. His powers in this respect are conferred by sec. 204 in the following terms:
$ 204. A defendant arrested may, at any time before the justification of bail, apply, on motion, to vacate the order of arrest, or to reduce the amount of bail.
The motion for this purpose must be made upon notice in the usual manner, or upon an order to show cause. If grounded on a positive defect on the papers on which the arrest was granted, no affidavits will of course be necessary. If, on the other hand, the application be grounded on facts extrinsic to case as made by the plaintiff
, the facts so adduced must of course be proved on affidavit in the usual manner, and copies of such affidavits must be served with the notice or order to show cause,
in due course. It appears from the case of Dunaher v. Meyer, 1 C. R. 87, that such motion need not necessarily be made before the judge who granted the order to arrest.
The defendant cannot move to vacate, on the ground that special cause for requiring bail has not be shown, as under the former practice. The setting forth a sufficient cause of action is now enough.— Baker v. Swackhamer, 5 How. 251;3 C. R. 248.
Several of the cases above cited, are authorities as to the circumstances under which, if shown, an order of arrest will be vacated.--See, in particular, Brophy v. Rodgers, and Adams v. Mills, as above referred to.