fraudulent representations respecting the pecuniary responsibility of third persons is liable to arrest. 80 79 4006. Fraudulent intent. In all cases where fraud is charged, proof of an actual intent ought to be required to justify or sustain an arrest.8 A purchaser who obtains credit by false representations must be held to intend the legitimate consequences of his acts.81 An attempt to postpone payment for a week, and failing within two days thereafter, was held to be conclusive evidence of intent to defraud, in the absence of any explanation.82 An intent to defraud existing at the time the obligation was contracted, may be inferred from subsequent circumstances.83 4007. Fraudulent purchase. Where one purchased bills of exchange on credit, for the purpose of remitting to Europe, and afterwards sold them in the market, it was held that as he purchased the bills with the intention to make such use of them, and knowing his inability to pay for them, the purchase was fraudulent, and that he was liable to arrest in an action for their value.84 Purchase with preconceived design not to pay is fraudulent, though a mere concealment of insolvency does not make it so.85 It is not necessary that misrepresentation should be sole inducement to sale.86 Party making representation false in fact is liable for it, though at the time he did not know whether it were true or false.87 § 4008. Grounds of arrest. When the defendant has been guilty of a fraud in contracting the debt or incurring the obligation for which the action is brought, or in concealing or disposing of the property for the taking, detention, or con 79 Hazlett v. Gill, 19 Abb. Pr. 353. 80 Birchell v. Straus, 28 Barb. 293; S. C., 8 Abb. Pr. 53; Gaffney v. Burton, 12 How. Pr. 516. 81 Whitcomb v. Salsman, 16 How. Pr. 533. 82 Smith v. Frank, 2 Rob. 626. 83 Lovell v. Martin, 11 Abb. Pr. 126; see Philips v. Benedict, 33 Barb. 655; S. C., 20 How. Pr. 265. 84 Morrison v. Garner, 7 Abb. Pr. 425; see, also, Brown v. Montgomery, S. C., 20 N. Y. 287; 75 Am. Dec. 404. 85 Hennequin v. Naylor, 24 N. Y. 139; King v. Phillips, 8 Bosw. 603 86 Shaw v. Stine, 8 Bosw. 157. 87 Craig v. Ward, 36 Barb. 377; Sharp v. Mayor of New York, 40 id. 256; S. C., 25 How. Pr. 389. version of which the action is brought, he may be arrested.S An honest though abortive purpose to continue business, and pay for the goods, is consistent with the vendee's knowledge of his own insolvency; and the purchase is not fraudulent when made with such intent, though founded in delusive and unreasonable expectations.89 An arrest for fraudulent representations, inducing purchase of property in a foreign country, will be sustained when property is brought into the state, though in such foreign country defendant would not have been arrestable; the lex fori governs.90 § 4009. Obligation - debt. Debt and obligation have the same meaning in this connection. They both import a contract liability. Debt implies a fixed and absolute liability, a sum actually owing from one party to another. Obligation includes an inchoate and conditional liability, the fixed character of which is to be determined by subsequent events.91 § 4010. Partners. Both partners are liable to arrest in an action on a debt of the firm fraudulently contracted by one of them.9 92 In McNeely v. Haynes, 76 N. C. 122, it was held that "a defendant in a civil action can not be arrested unless he has been guilty of a fraud." The partner who had procured the goods by fraudulent representations had escaped, and the other partner was arrested. The court says: "As it appears from the case, J. A. Haynes was not present when the goods were purchased by Calvin, had no knowledge of it, and in no wise connived at or assented to it; nor does it appear that the goods were sent to or received by him." How much importance 88 Cal. Code Civ. Pro., § 479, subd. 4. For illustrations of the principles upon which orders of arrest may be granted under this subdivision, see the following cases: Bean v. Renway, 17 How. Pr. 90; Freeman v. Leland, 2 Abb. Pr. 479; Bell v. Mali, 11 How. Pr. 254; Union Bank v. Mott, 6 Abb. Pr. 315. 89 Nichols v. Pinner, 18 N. Y. 295; compare Mitchell v. Worden, 20 Barb. 253. 90 City Bank v. Lumley, 28 How. Pr. 397. 91 Ely v. Steigler, 9 Abb. Pr. (N. S.) 35; Smith v. Corbiere, 3 Bosw. 634; Oatley v. Lewin, 47 Barb. 18; Crandall v. Bryan, 15 How. Pr. 48. 92 Union Bank v. Mott, 6 Abb. Pr. 319, note; Townsend v. Bogart, 11 id. 355; Bull v. Melliss, 9 id. 58; Coman v. Reese, 21 How. Pr. 114; Sherman v. Smith, 42 id. 198. But opposed to these cases is Fanover v. Sheldon, 9 Abb. Pr. 240, and note. This case, however, is expressly overruled by the later case of Sherman v. Smith, supra. was attached to the fact last stated does not appear. In Claflin v. Frank, 8 Abb. Pr. 412, it was held that the defendant is not liable to arrest for the fraud of his agent, without personal guilt on his part in respect to the commission of the fraud, or by ratification of the fraudulent act; but in later cases it is said that so long as the principal retains the benefit of the dealing he can not claim immunity on the ground that the fraud was committed by his agent, and not by himself.93 In Sherman v. Smith, the liability of the copartner is placed on the same grounds, viz., agency, and the profit resulting from the wrong. The reasoning of these cases is by no means satisfactory, if we are to understand the principle laid down as a universal one. If the partner, originally innocent, after he is informed of the fraud, refuses to restore the goods, or to pay therefor if they are sold or consumed, having the ability to do so, he might be well held to have ratified the fraudulent act of his partner; for if the retention of the goods, or of the profits of the fraudulent act of his partner, is to make him liable to arrest, it ought to appear that such retention is voluntary, and not the result of inability. 4011. Statements sufficient. It is not necessary that the defendant should be benefited by his false representation, or in collusion with another. It is sufficient if the representation induces action by the plaintiff.94 But to give an action for them, representations must be made to plaintiff, or with design to influence his conduct.95 If the affidavit shows a cause of action in the nature of an action on the case for obtaining goods from the plaintiffs by fraud, it is not to be inferred that the complaint will not state a cause of action of that nature, because the affidavits also allege that the action is brought to recover the price of goods sold.96 To sustain an order of arrest 93 See Bennett v. Judson, 21 N. Y. 238; Crans v. Hunter, 28 id. 389, 393; Elwell v. Chamberlain, 31 id. 611, 619. 94 Hubbard v. Briggs, 31 N. Y. 518. 95 Van Kleeck v. Le Roy, 37 Barb. 544. See, as to evidence of contemporaneous frauds, Amsden v. Manchester, 40 Barb. 158. See, as to what will be sufficient to make out a case of fraud, White v. Dodds, 42 Barb. 554; S. C., 28 How. Pr. 197; S. C., 18 Abb. Pr. 250: Potter v. Sullivan, 16 id. 295; Smith v. Countryman, 30 N. Y. 655. See, as to what is necessary to constitute an actual fraud, Farrington v. Bullard, 40 Barb. 512, 516. 96 Townsend v. Bogart, 11 Abb. Pr. 355. For another form sufficient, see same cases. under this subdivision, it must appear: 1. That the defendant has made representations which were false; 2. That he knew them to be false;97 3. That the plaintiff relied upon, and was in point of fact deceived by them.98 § 4012. Affidavit for order of arrest-removal of property with intent to defraud. [TITLE.] [VENUE.] Form No. 966. being duly sworn, says that is the plaintiff in the above-entitled action; that a sufficient cause of action exists in favor of plaintiff against said defendant for the sum of ... ... dollars, as fully ap pears from the verified complaint herein, a copy of which complaint is hereto annexed and made a part of this affidavit; that it is an action for the recovery of money on a cause of action arising upon an contract, and that the defendant in said action is about to remove and dispose of his property with intent to defraud creditors. And affiant further states and shows the following facts and circumstances in support of the above allegations of fraud, towit [state them fully]. [JURAT.] § 4013. Undertaking on order of arrest. [SIGNATURE.] 99 [TITLE.] Form No. 967. Whereas, the above-named plaintiff has commenced, or is about to commence, an action in the Superior Court of the state of in and for the city and county of against the above-named defendant, and is about 97 Gaffney v. Burton, 12 How. Pr. 516; Young v. Covell, 8 Johns. 23; 5 Am. Dec. 316; Addington v. Allen, 11 Wend. 374. 98 Freeman v. Leland, 2 Abb. Pr. 479; Wanzer v. De Baun, 1 E. D. Smith, 261. 99 Defendant may be arrested when he has removed or disposed of his property, or is about to do so, with intent to defraud his creditors. Cal. Code Civ. Pro., § 479, subd. 5; N. Y. Code, § 550, subd. 2. Proof of actual fraudulent intent is requisite to justify an arrest under this subdivision: Pacific Mut. Ins. Co. v. Machado, 16 Abb. Pr. 451; see, ante, § 4006. to apply for an order for the arrest of the said defendant in said action. Now, therefore, we, the undersigned, residents of the ... county of ... ..., in consideration of the premises, and of the issuing of said order of arrest, do undertake in the sum of dollars, and promise to the effect that if the said defendant recover judgment, the said plaintiff will pay all costs and charges that may be awarded to the said defendant, and all damages which he may sustain by reason of the arrest, if the same be wrongful or without sufficient cause, not exceeding the sum of .. dollars. O. P. [Seal.] the persons named in and who subscribed the foregoing, undertaking as the sureties thereto, being severally duly sworn, each for himself says: That he is a resident and holder within this state, and is worth the sum specified in the said undertaking as the penalty thereof, over and above all his just debts and liabilities, exclusive of property exempt from execution. [JURAT.] [SIGNATURES.] § 4014. Approval of undertaking. Court commissioners have power to approve undertakings.100 § 4015. Dismissal of action. If the action is dismissed, the undertaking must thereupon be delivered by the clerk to the defendant, who may have his action thereon.101 84016. Justification of sureties. Each of the sureties shall annex to the undertaking an affidavit that he is a resident and householder, or freeholder, within the state, and worth the sum specified in the undertaking, over and above all his debts and liabilities, exclusive of property exempt from execution. The undertaking shall be filed with the clerk of the court.102 The obligations of bail are assumed with reference |