2. In Canada. Form No. 2236. (Precedent in Strong v. Grannis, 26 Barb. (N. Y.) 124.j1 In the Queen's Bench. County of Lincoln, one of the united counties of Lincoln and Welland, to wit: George Brooks Redfield, of the town of Niagara, esquire, maketh oath and saith that Thomas Grannis the younger is justly and truly indebted to this deponent in the principal sum of one hundred and thirty-seven pounds and ten shillings, of lawful money of Canada, for money paid by this deponent for the said Thomas Grannis the younger, at his request; and this deponent further saith, that he hath good reason to believe, and doth verily believe, that the said Thomas Grannis the younger is immediately about to leave Upper Canada, with the intent and design to defraud this deponent of the said debt. George Brooks Redfield. Sworn before me at Niagara, in the county of Lincoln, this 17th day of January, 1855. John M. Lowder, a Com'r for taking affidavits in the queen's bench in said county. 3. Under Codes and Statutes. a. In General. (1) AFFIDAVIT BY PLAINTIFF. (a) In Contract. Form No. 2237. Supreme Court, Suffolk County. John Doe, plaintiff, against Pichard Roe, defendant. State of New York, County of Suffolk. Ss. 2 Affidavit for Order of Arrest. John Doe, being first duly sworn, says: i. That he is the plaintiff in the above entitled action.* II. That the above named defendant, Richard Roe, is justly indebted to the deponent (or, to the said John Doe) in the sum of believes" that the defendant is indebted, etc., is sufficient to authorize an order for bail. 3. Deponent's Residence.-It is not necessary to the validity of an affidavit to hold to bail that the deponent's resi 1. This affidavit is drawn under 8 dence should be stated in it, or that it Vict., c. 48, § 44. 2. Entitling Affidavits.-In the code states it is customary to entitle the affidavit in the cause. In the common-law states, however, this is not necessary or desirable. Hatch v. Saunders, 66 Mich. 181. See also supra, note 4, p. 125. should show the town or county where it was taken. Benson v. Bennett, 25 N. J. L. 166. 4. For a complete treatment of affidavits generally, consult the title AFFIDAVITS, vol. 1, p. 548 et seq. five hundred dollars, for goods sold and delivered by said plaintiff to said defendant.1 III. That said defendant has removed and is about to dispose of all his property with intent to defraud his creditors.2 IV. That deponent is justified in his belief of the above mentioned fraudulent intent by the following facts and circumstances: (Here enumerate the facts and circumstances showing defendant's fraudulent intent.)3 1. The cause of action should be set out according to the facts of each particular case and according as the action is one arising from contract or tort. 2. For a complete discussion of the various statutory grounds for arrest, see supra, note 1, p. 120. 3. The facts upon which the application for the order of arrest is made should be set out in detail, and mere conclusions of law upon information and belief are not sufficient. The affidavit must show the facts and circumstances upon which the plaintiff's belief is grounded in order that the court may judge of their reasonableness. Hackett v. Wayne Circuit Judge, 36 Mich. 334; Sheridan v. Briggs, 53 Mich. 569; Luton v. Newaygo Circuit Judge, 70 Mich. 152; Wood v. Harrell, 74 N. Car. 338; Broadhead v. McConnell, 3 Barb. (N. Y.) 175; Harman v. Brotherson, 1 Den. (N. Y.) 537. But it is not necessary, for example, to make an express averment that money for which the action is brought was received in a fiduciary capacity. It is sufficient to state the facts showing that it was so received. Moffatt v. Fulton, 132 N. Y. 507. See also McKindley v. Rising, 28 Ill. 340: Cummer v. Moyer, 57 Mich. 375. A clear case for arrest should be cstablished in all cases. In other words, a prima facie case should be made out by the affidavit. Matter of Smith, 16 III. 347; Stafford 7. Low, 20 Il. 152; Parker v. Follensbee, 45 Ill. 473; Muller. Perrin, 14 Abb. Pr. Ñ. S. (N. Y. Supreme Ct.) 95; Griswold Sweet, 49 How. Pr. (N. Y. Supreme Ct.) 171; Dreyfus v. Otis, 54 How. Pr. (N. Y. Supreme Ct.) 405. Where, for example, the ground of arrest is fraud, the affidavit is not sufficient if it contains a statement of facts which are merely consistent with fraud. They must be such as, if unexplained and uncontradicted, will prove the fraud. Gillett v. Thiebold, 9 Kan. 427; Tennent v. Weymouth, 25 Kan. 21. And the affidavit should show all the facts necessary to sustain the order of arrest by positive averment, and reference to the complaint or any other paper to show what the affidavit ought itself to disclose has been held to be insufficient. McGilvery v. Morehead, 2 Cal. 607. When the affidavit is based on facts within affiant's own knowledge he need not state the sources of his information. Pierson v. Freeman, 77 N. Y. 589; Harriss v. Sneeden, 27 N. Car. 273. But where the facts are stated on information and belief, affiant must state the sources of his information. Pierson v. Freeman, 77 N. Y. 589; Bell v. Mali, 11 How. Pr. (N. Y. Supreme Ct.) 254; Dreyfus v. Otis, 54 How. Pr. (N. Y. Supreme Ct.) 405; Hughes v. Person, 63 N. Car. 548; Wilson v. Barnhill, 64 N. Car. 121; Wood v. Harrell, 74 N. Car. 338; Harriss v. Sneeden, 101 N. Car. 273; Tucker v. Wilkins, 105 N. Car. 272; Wright v. Cogswell, 1 McLean (U. S.) 471. And the affidavit should show why the person communicating informa tion to the affiant did not make the affidavit himself. Bell v. Mali, 11 How. Pr. (N. Y. Supreme Ct.) 254. Statutes governing arrests in civil cases must be followed with great strictness. Accordingly where a statute authorizes an arrest on the ground that the debtor is "about to depart and reside beyond the limits of this state," the affidavit must show that the debtor is "about to depart and reside," otherwise it will be defective. Whiting v. Trafton, 16 Me. 398; Mason v. Hutchings, 20 Me. 77; Sawtelle v. Jewell, 34 Me. 543; Wilson v. Barnhill, 64 N. Car. 121. And so an affidavit has been held defective for not containing an averment that the creditor is about to "take with him property or means exceeding the amount required for his V. That no previous application for an arrest of said defendant has beer made in this action.1 Subscribed and sworn to before me, this 29th day of January, A. D. 1897. Abraham Kent, Justice of the Peace.2 (b) In Tort. Form No. 2238. John Doe. (Commencing as in Form No. 2237, and continuing down to *.) II. That on (or about) the third day of January, 1897, the above named defendant, Richard Roe, seized and laid hold of said plaintiff, and with much force and violence struck said plaintiff, and knocked him down, and kicked him (here describe the assault fully), so that said plaintiff has from thence hitherto been in a serious state of illness; and that the damage said plaintiff has sustained thereby amounts to five thousand dollars at the least; and said plaintiff verily believes that he is entitled to recover, and will recover in this action, that amount of damages. Said plaintiff has been informed, and verily believes, that the said Richard Roe is a person in good circumstances, and well able to make said plaintiff satisfaction for the said ill-treatment. (Signature and jurat as in Form No. 2237.)3 (2) AFFIDAVIT BY ONE OF SEVERAL PLAINTIFFS. Supreme Court, Suffolk County. John Doe and Samuel Short, plaintiffs, John Doe, being duly sworn, says: 6 own immediate support," when this is required by statute. Sawtelle v. Jewell, 34 Me. 543; Furbish v. Roberts, 39 Me. 104; Sargent v. Roberts, 52 Me. 590. And so of an affidavit which neglected to state that the sum due to the plaintiff amounted to "at least ten dollars" when this sum was required by statute. Sawtelle v. Jewell, 34 Me. 543. And where the statute required the affidavit to contain a statement that the defendant was about to depart from the state, "taking with him property or means of his own," the omission of the word "his" was held to be a fatal defect. Bailey v. Carville, 62 Me. 524. If sufficient facts are stated in the affidavit to constitute a good cause of action, it is no objection that the state Affidavit for Order of ment commenced with the words "For that," but if commenced with the words "For that whereas," the affidavit will be by way of recital, and will not be sufficient. Benson v. Bennett, 25 N. J. L. 166. 1. This averment is required by Rule 25, Hun's Court Rules (N. Y.) 1896. 2. For a complete treatment of the jurat in affidavits, consult the title AFFIDAVITS, vol. 1, p. 560 et seq. 3. Unless as in New York an averment like that numbered V. in Form No. 2237 is required by rules of court or statute, in which case it should be inserted as the last averment of the affidavit. 4. See supra, note 2, p. 131. I. That he is one of the plaintiffs in the above entitled action. II. That the above named defendant, Richard Roe, is justly indebted to the deponent and the above named Samuel Short in the sum of (continuing and concluding as in Form No. 2237). (3) AFFIDAVIT BY PLAINTIFF'S AGENT. Form No. 2240. (Title of cause and venue as in Form No. 2237.) Leonard A. Ford,1 being first duly sworn, says: 2 I. That he is the agent (or attorney) of the above named plaintiff, John Doe (continuing and concluding as in Form No. 2237 or Form No. 2238). (4) AFFIDAVIT BY AN EXECUTOR OR ADMINIstrator. County of Suffolk. S ss. 3 Affidavit for Order of The above named John Doe, being first duly sworn, says: 5 I. That he is the executor of the will (or administrator of the goods, chattels, and credits which were of) Samuel Short, deceased. II. That the above named defendant, Richard Roe, is justly and truly indebted to the deponent, as executor (or administrator) as aforesaid, in five hundred dollars, for (continuing and concluding as in Form No. 2237). County of Pulaski, Big Rock Township. John Doe, plaintiff, against Richard Roe, defendant. b. In Arkansas. 6 Form No. 2242. Before Abraham Kent, Justice of the Peace for said Township. Affidavit for Order of Arrest. The above named plaintiff, being duly sworn, says that the claim 1. See supra, note 3, p. 131. 2. See supra, note 4, p. 131. 3. See supra, note 2, p. 131. 4. See supra, note 3, p. 131. 5. See supra, note 4, p. 131. 6. This form is drawn under Sand. & H. Ark. Dig. (1894), § 233. The Arkansas statute requires the affidavit in all cases to state the nature of the plaintiff's claim or debt, and to charge the defendant with fraud in contracting the same; that the debt is just, and the amount affiant believes plain tiff entitled to recover; and also that defendant is about to leave the state, and has, with intent to defraud his creditors, concealed or removed his property, or so much thereof as will prevent execution; or that defendant, having money, or securities for money, in his possession, or in the possession of another for his use, is about to depart from the state without leaving sufficient property therein to satisfy plaintiff's claim. 7. If in the Circuit Court, the against the defendant in this action is for goods sold and delivered by plaintiff to the defendant at his request; that the claim is just, and that affiant believes he ought to recover thereon the sum of one hundred dollars; and that the defendant is about to leave the state of Arkansas, and, with intent to defraud his creditors, has concealed or removed his property, or so much thereof that the process of the court after judgment cannot be executed; and that the defendant has been guilty of fraud in contracting the debt, in that he (here set forth the facts and circumstances showing defendant's fraud in contracting the debt). John Doe. Subscribed and sworn to before me, this 21st day of January, 1897. Abraham Kent, } Justice of the Peace.1 c. In New Mexico. 2 Territory of New Mexico, County of San Miguel. Form No. 2243. SS. Before me, the undersigned, clerk of the District Court in and for the county of San Miguel and territory above mentioned, on this first day of July, 1896, personally appeared John Doe, who being duly sworn declares and says that Richard Roe is justly indebted to the said John Doc in the sum of one hundred dollars, 3 after allowing all just off-sets, and that he, the said John Doe, has reason to believe and does believe that the said defendant is about to abscond from the territory so as to endanger the collection of his debt. John Doe. Sworn to and subscribed before me, this first day of July, 1896. (SEAL) Daniel Clark, } Clerk of the District Court. d. Where Defendant Is about to Abscond. 4 Form No. 2244. (Precedent in Drake v. Granger, 22 Fla. 350.)5 Commonwealth of Massachusetts, Hampden, s. s., July 23d, A.D. 1879. I, S. L. Granger, the plaintiff named in the annexed writ do, on caption would be "Pulaski Circuit Court." 1. The jurat should be subscribed by the officer before whom the affidavit was made. For example, if made before the clerk of a Circuit Court, it would be signed "John Hancock, Clerk." 2. This form is drawn under Comp. Laws N. Mex. (1884), § 1966. 3. This sum must exceed fifty dollars in order to sue out the writ from the District Court. Comp. Laws N. 6. This form satisfies the require. |