A. B. of the city of the above-named plaintiff, being duly sworn, doth depose and say that this action is one brought for the recovery of money, against the defendants, a corporation created by or under the laws of another state, to wit, of the state of . That a cause of action exists in him, the said plaintiff, against the said defendants, for the sum of dollars, the amount of the claim of him, the said plaintiff; and that the grounds of such action are in respect of [state circumstances of case). And deponent lastly saith, that the said defendants are a foreign corporation, having property within

Against the defendant, C. D., who is not a resident of this state, but who resides at

in

as he, this deponent, has been informed and believes. That a cause of action, &c., as in last. That the said defendant, C. D., is not a resident of this state.

AGAINST ABSCONDING OR CONCEALED DEBTOR.

Alter as follows:

Against the defendant, C. D., who has absconded and concealed

himself as hereinafter mentioned. That a cause of action, &c., as in last. That the said defendant, C. D., &c. [state clearly, and as positively as possible, the facts and circumstances, showing that C. D. is absconding and concealed.]-V. page 694 et seq. That (in the belief of this deponent) the said C. D. has departed from this state, &c. [bring the case within one of the different categories mentioned at the close of sec. 229, according to the circumstances, using the precise words of the statute, whichever may be applicable.]

N.B. If the knowledge of the plaintiff be positive upon the subject, omit the words, "in the belief of this deponent."

Title, &c.

UNDERTAKING.

V. page 691.

Application having been made to the Honorable one of the justices of this court, by A. B., the above-named plaintiff, for an attachment against the property of C. D., the above-named defendant, a [describe class under which defendant falls].

Now, therefore, we, the undersigned [names and description of plaintiff and surety, as in prior forms], do hereby undertake, pursuant to the statute in such case made and provided, that if the said C. D., the defendant above named, recover judgment in this action, the said plaintiff, A. B., will pay all costs that may be awarded to the said defendant, and all damages which he may sustain by reason of the said attachment, not exceeding the sum of two hundred and fifty dollars.

[Add affidavit by surety, and acknowledgment, as in No. XII.]

ATTACHMENT.

Greeting:

The People of the state of New York,

To the Sheriff of the city and county of New York,

Whereas, an application has been made to the Honorable one of our justices of the

court, by A. B., for an attachment

against the property of C. D., setting forth by affidavit that the plaintiff has commenced his action for the recovery of money, against the said defendant, a corporation created by or under the laws of another state.

Or,

A defendant who is not a resident of this state.

Or,

A defendant who has absconded and concealed himself, as in the said affidavit mentioned.

That a cause of action exists against the said defendant, on behalf of the said plaintiff, for the sum of dollars, and that the grounds of such action are [state grounds of action, as concisely as possible], and that the said defendants, &c., are a foreign corporation; or, "that the said defendant is not a resident of this state; or, that the said defendant has departed from this state with intent, &c. [allege in conformity with affidavit, in precise words of sec. 229], the same so appearing by affidavit.

Now, you are commanded and required to attach and safely keep all the property of the said defendants, within your county, or so much thereof as shall be sufficient to pay the plaintiff's demand, together with costs and expenses, as a security for the satisfaction of such judgment as the plaintiff may recover, and therein proceed in the manner as required by the statutes in such case made and provided.

UNDERTAKING BY DEFENDANT, SEEKING DISCHARGE OF ATTACHMENT, UNDER SECS. 240 AND 241.

Title, &c.

the city of

and C. D. of No.

An attachment having been issued in the above-entitled suit, to the Sheriff of the county of , and the above-named defendant having appeared in such action, and being about to apply to the officer who issued such attachment, (or to the above-mentioned court,) for an order to discharge the same; we, A. B., of No. Street, in Street, in the said city, do hereby, pursuant to the statute in such case made and provided, undertake, in the sum of [N.B. double the amount stated by the plaintiff in his complaint], that the said defendant will, on demand, pay to the above-named plaintiff the amount of the judgment which may be recovered against the above-named defendant in this action, not exceeding the above-mentioned sum.

Usual affidavit of justification and acknowledgment.-V. No. XIIL N.B. There must be two sureties, at least, to this undertaking.

LXXXII.

APPOINTMENT

OF RECEIVER.

NOTICE OF MOTION.

V Page 705.

Title and Notice, &c., V. No. X.

Grounded "upon the pleadings in this action, and the affidavit, with a copy of which you are herewith served."

That a receiver may be appointed of the rents and profits of the estate, (or, of the estate, property and effects,) of the defendant, C. D., referred to in the pleadings of this cause, with the usual powers, and upon the usual directions; or for such further or other order as may be just.

ORDER THEREUPON.

Title, &c., V. No. XI.

That it be referred to A. B., Counsellor at Law, residing in the City of

, in the County of to appoint a receiver of the rents and profits of the estate, (or, "of the estate, property and effects,") of the defendant, C D., mentioned in the pleadings in this cause, with the usual powers, and upon the usual directions; and that the said referee take from such receiver the necessary and usual security for the performance of his trust, and file the same in the proper office; and that, upon the filing of the report of the said referee, and of such security, such receiver be vested with all his rights and powers as receiver, according to the rules and practice of this Court.

840

DIGEST

OF

RECENTLY-REPORTED CASES,
REFERRED TO IN PRELIMINARY NOTICE.

ACTIONS.

V. Pleading Justices' Court.

ADMISSION

BY NON-DENIAL ON PLEADING-EFFECT OF. V. Pleading.

ADVERSE POSSESSION.

Ir grantee enter in life-time of grantor, and hold both lands and deed, for a period sufficient, if holding adverse, to bar an entry; in absence of other evidence, the character of possession may be ascertained from the language of deed; and, if that professes to convey absolute estate in fee, the inference is inevitable, that both entry and possession are adverse.-Corwin v. Corwin, 9 Barb. S. C. R. 219. By majority, Barculo J. dissenting.

Adverse possession of twenty years held to be insufficient, in case where action was brought in place of a writ of right, and the right in question accrued before passing of Revised Statutes. Twenty-five years must be shown to bar the action. in such a case, as under the former law.-Fosgate v. Herkimer Manufacturing and Hydraulic Company, 9 Barb. S. C. R. 287.

AFFIDAVIT

Venue must be stated upon; if not, proceeding void. It must appear upon its face, that it was made before some officer competent to take affidavits, and within some place, where he was authorized by law to administer an oath.-Lane v. Morse, 6 How. 394.