defendant before the expiration of an order for publication, but may be continued against his representatives.-Moore v Thayer, 6 How. 47; 3 C. R. 176.

The skeleton form of an affidavit on which to ground an application for an attachment, will be found in the Appendix. The statement of facts will, of course, vary according to the circumstances. It must be clearly shown upon such affidavit, 1st. That a cause of action exists, specifying the amount and grounds of claim; and 2d. That the defendant comes within some one or more of the different categories pointed out in section 229. The chapter on summons, and the cases there cited in relation to the analogous remedy of service by publication, may be advantageously referred to, as regards the preparation of these affidavits. Of course the utmost care must be taken, and the terms of the statute must be throughout strictly complied with, or jurisdiciion will not be conferred. A mere allegation in the words of the statute will not suffice, facts must be stated in all cases.-V. Frost v. Willard, 9 Barb. 440, and other cases to that effect, cited in the preceding chapters.

In Conklin v. Dutcher, 5 How. 386, 1 C. R. (N. S.) 49, it was, however, held to be the rule that, "if enough is set forth in the affidavit, to call upon the officer for the exercise of his judgment upon the weight and importance of the evidence, it is sufficient. It is only where there is a total want of evidence upon some essential point, that the officer will fail to acquire jurisdiction, (4 Hill 602, 20 Wendell, 77.)”

In St. Amant v. De Beiscedon, 3 Sandf. S. C. R. 703, 1 C. R. (N. S.) 104, the general requisites of the affidavit on which an attachment may be obtained, are thus stated by the general Term of the superior court. "We consider it proper, in a remedy of so grave a character as this; the attachment, in effect, tying up the entire property of a party pending a suit, that the affidavit upon which the proceeding is authorized, should be explicit, and made in general upon positive knowledge of the deponents, so far as to establish a primâ facie case. In general, there is no difficulty in obtaining the affidavits of the persons who give the information on which the plaintiff desires to proceed; and, when such affidavits cannot be obtained, from the peculiar circumstances of the case, those circumstances must be stated with all the grounds of suspicion, so as to satisfy the judge that the facts exist on which the attachment is sought, and that the plaintiff has produced the best evidence in his power to establish them."

See this subject fully considered in the previous chapters of this portion of the work, under the analogous heads of Arrest and Injunction.

In Camman v. Tompkins, 1 C. R. (N. S.) 12, and Gilbert v. Tompkins, 1 C. R. (N. S.) 16, the same principle is thus laid down that "The grounds of the belief of the party must be set out, so that the judge who issues the warrant may have such belief, and the court may be able to determine whether it be well grounded."

In Morgan v. Avery, 7 Barb. S. C. R. 656, 2 C. R. 91, affirmed on appeal, 2 C. R. 121, the law as to the statements, which will suffice to establish that the defendant has departed with intent to defraud his creditors, or to avoid service of a summons, is laid down as follows. It is not necessary that such departure should have been made by the defendant secretly, as under the Revised Statutes: "If he have departed ever so openly, it will be enough, if the required intent is made out." After stating the facts of the case, which showed that such departure, in that instance, was not secret, but was nevertheless made under circumstances of considerable embarrassment, and some suspicion, the learned judge proceeds as follows: "I repeat that no imputation of an intent to defraud his creditors necessarily follows from the facts of the case, nor is it necessary to cast any such imputation, in order to sustain the attachment."

"If, finding himself irretrievably involved, so that his failure must soon happen, he has desired to be out of the way of his creditors at the time it should happen, although he had left all his property behind him, and although he was desiring to get into other business, whereby he might ultimately retrieve his affairs, the inference may very properly be drawn, that he departed the state with intent to avoid the service of a summons. Such, at all events, seems to me to be the highest probability in this case, and I cannot, therefore, feel myself warranted in setting aside the attachment as improvidently issued."

In the superior court, however, a more restricted view is taken as to the propriety of granting this species of remedy, and, under very similar circumstances to those reported in Morgan v. Avery, an attachment has been refused, but an order for service by publication granted, on an application for both remedies on the same affidavits.

In Camman v. Tompkins, 1 C. R. (N. S.) 12, the law on the subject of concealment of a defendant, is laid down in extenso.

The defendant, in that case, after his insolvency became manifest, had remained out of the way a few hours, until he had succeeded in completing a disposition of his property without molestation from his creditors, and then returned to his house, and delivered himself up to an officer who held a warrant to arrest him. The learned judge held that this was a sufficient concealment to bring the case within the provisions of this chapter. "It is not necessary that a summons should have been issued, and an ineffectual attempt to serve it made. It was enough, if the party intentionally so disposed of himself that one could not have been served." "It is concealment, to avoid the service of process, no matter whether for an hour, a day, or a week; no matter whether with a view to defraud creditors, or merely to have time to make a disposition, lawful or otherwise, of his property, before his creditors got at him. It is placing himself designedly, so that his creditors cannot reach him with process; and that, it seems to me, is clearly the concealment which the statute contemplates."

In Gilbert v. Tompkins, 1 C. R. (N. S.) p. 16, where the defendants had, in their affidavits, stated the facts on which they applied for an attachment, but had drawn a wrong conclusion from those facts, inferring that the defendant had departed the state, whereas he had actually concealed himself within it, the attachment issued on those affidavits was sustained, as being warranted by the facts themselves, without the inference.

The affidavits and security being prepared, application should be made to a judge, or county judge, as above prescribed, for a warrant of attachment. The form of this document is prescribed by sec. 231, as follows:

§ 231. The warrant shall be directed to the sheriff of any county in which property of such defendant may be, and shall require him to attach and safely keep all the property of such defendant within his county, or so much thereof as may be sufficient to satisfy the plaintiff's demand, together with costs and expenses. The amount of which must be stated in conformity with the complaint, together with costs and expenses. Several warrants may be issued at the same time, to the sheriffs of different counties.

See Appendix for form.

In Camman v. Tompkins, 1 C. R. (N. S.) 12, it was held that the warrant is process in the progress of the cause, and must, as such, be issued in the ordinary form, and under the seal of the court. The allowance of the judge is necessary to warrant its

issuing, but the usual law stationers' form, in which such attachment is treated as process running in the name of the judge, and signed by him, is wrong. An amendment was, however, allowed. These directions must therefore be strictly followed in all cases, the judge's allowance being first obtained, and the paper afterwards sealed in the clerk's office in the ordinary form. If more than one warrant is required, duplicates should be prepared, and the judge's signature and seal of the court obtained thereto.

The warrant, when obtained, must be lodged with the sheriff of the county, the affidavits on which it was issued being filed with the clerk of the court.

The duties of the sheriff thereon, are thus prescribed by sections 232 to 236, inclusive.

§ 232. The sheriff to whom such warrant of attachment is directed and delivered, shall proceed thereon in all respects, in the manner required of him by law in case of attachments against absent debtors; shall make and return an inventory, and shall keep the property seized by him, or the proceeds of such as shall have been sold, to answer any judgment which may be obtained in such action; and shall, subject to the direction of the court or judge, collect and receive into his possession all debts, credits, and effects of the defendant. The sheriff may also take such legal proceedings, either in his own name or in the name of such defendant, as may be necessary for that purpose, and discontinue the same, at such times and on such terms as the court or judge may direct.

§ 233. If any property so seized shall be perishable, or if any part of it be claimed by any other person than such defendant, or if any part of it consist of a vessel, or of any share or interest therein, the same proceedings shall be had in all respects, as are provided by law upon attachments against absent debtors.

§ 234. The rights or shares which such defendant may have in the stock of any association, or corporation, together with the interest and profits thereon, and all other property in this state of such defendant, shall be liable to be attached and levied upon and sold to satisfy the judgment and execution.

§ 235. The execution of the attachment upon any such rights, shares, or any debts or other property incapable of manual delivery to the sheriff, shall be made by leaving a certified copy of the warrant of attachment with the president or other head of the association or corporation, or the secretary, cashier, or managing agent thereof, or with the debtor or individual holding such property, with a notice showing the property levied on.

§ 236. Whenever the sheriff shall, with a warrant of attachment, or execution against the defendant, apply to such officer, debtor, or individual, for the purpose of attaching, or levying upon such property, such officer, debtor, or individual, shall furnish him with a certificate under his hand, designating the number of rights or shares of the defendant in the stock of such association or corporation, with any dividend, or any incumbrance thereon, or the amount and description of the property held by such association, corporation, or individual, for the benefit of, or debt owing to the defendant. If such officer, debtor, or individual refuse to do so, he may be required by the court or judge to attend before him, and be examined on oath concerning the same, and obedience to such orders may be enforced by attach

ment.

The statutory provisions, under the law in cases of attachment against absent debtors, will be found as above, at 2 R. S. 1 to 16 inclusive. See, also, the works on the old practice, in relation to the proceedings under these provisions, which are essentially the same as those under the Revised Statutes, with this exception, that the machinery of trustees, as thereby provided, is now swept away, and the sheriff alone acts in the matter.

Where legal proceedings may be necessary, under the provisions of sec. 232, the same may be prosecuted by the plaintiff himself, if thought advisable, under the following power, conferred by sec. 238:

§238. The actions herein authorized to be brought by the sheriff, may be prosecuted by the plaintiff, or under his direction, upon the delivery by him to the sheriff of an undertaking executed by two sufficient sureties, to the effect that the plaintiff will indemnify the sheriff from all damages, costs and expenses on account thereof, not exceeding two hundred and fifty dollars in any one action. Such sureties shall, in all cases, when required by the sheriff, justify, by making affidavit that each is a householder, and worth double the amount of the penalty of the bond, over and above all demands and liabilities.

The sheriff, having thus seized upon all the available property of the defendant, holds it in deposit, to abide the event of the suit, the plaintiffs lien taking precedence of any subsequent process lodged with him.

In Frost v. Willard, 9 Barb. S. C. R. 440, an attachment, issued against goods in the hands of third parties, who had a claim to property in part thereof, and a lien on the remainder for ad