brackets, cornice stone front, with cornice of neat and tasty kind; the windows in front, of second story, to have cornice caps. The second story to be partitioned off as desired. The basement story to be finished off into two rooms in front, with stairs in front and rear. and gas and water put into same, and trap door in sidewalk, all to be of the best material, and done in good workmanlike manner, and completed by the 15th day of September, 1864, in consideration for which, he, the said Parker, agreed to pay for the same $8,500 to said Standish, as fast as the work progressed, holding back 15 per cent. until the building was completed; and the said Parker was to have the privilege to select two persons to inspect the building, and the said Standish one if he chose; and the said Standish agreed to forfeit $5 per day for every day after the said 15th day of September, that the building should remain unfin~ ished, should there be no providential interposition.

For breaches of which contract, and money overpaid thereon by said Parker, to said Standish, and to his order, the said suit is to be brought.

And the said ‘Wilton Parker maketh oath further, that the sum which he is justly entitled to recover in the said suit, by way of damages, and which is now due him, amounts to, at the least, the sum of $2,000, as he verily believes, and has ascertained, and the same will be in danger of being lost, and that the benefit of whatever judgment he may obtain in said suit will be in danger, unless the defendant be held to bail in said action.

And the said zl/[ilton Parker further maketh oath that by the terms of said contract he was only to pay the said Standish for the work contracted by him to be done, as the same was done or progressed, and reserving 15 per cent. thereof to insure the proper execution of the same; that shortly after the making of said contract, the said Standish came to him, in pursuance, as he believes and avers, of a fraudulent purpose, to cheat and defraud afiiant, conceived by said Standish, and entertained at and before the time of making said contract, and, under various pretenses and urgent appeals, among others that material for building was rising in value, fraudulently induced affiant to advance him large sums of money on said contract, for the purpose of purchasing his materials to fulfil his said contract, promising afiiant at the time, that such advances of money should be faithfully applied to the purchase of such materials, and that afl'iant did in pursuance of such requests, and to aid said Standish, advance and pay to him sums to the amount of $4,100, and that although the said Standish was to complete the said work and building by the 15th day of September, i864, he utterly failed to do so, and failed and refused to appropriate the money so advanced to him to the purposes agreed upon and intended as aforesaid; but, on the contrary thereof, fraudulently abandoned and utterly neglected said work, and appropriated said money so advanced to his own use; that, after due notice and demand upon the said Standish, to continue and complete said

work, and his refusal and neglect to do so, affiant was, to wit, on the 1 of October, 1864, compelled, at great expense and loss, to employ others to complete the same, and that, at the time said Standish abandoned said work, and when afliant employed others to finish it, the work, labor and materials furnished and put upon the same by said Standish, including what had been paid upon the stone foundation, amounted to only $1,900, whereas he had already received $4,100 from affiant, for the purpose of erecting said building, and to enable him to fulfil his said contract. A]. Parker.


Subscribed and sworn to before me this 13th day of December,

A.D. 186.4. W'm. L. Church.


Form No. 2258.2

(Precedent in Ex p. Davis, 17 Neb. 437.)3 [ Caption)]*

ames 111. Anthony being first duly sworn, says that he is the duly authorized agent of the above named plaintiff, Amos Whitely, president of the Champion fllachine Co., that said plaintiff has commenced an action in said court against the above named defendant, Ed. F. Davis, to recover from him the sum of four hundred and twenty-nine dollars and twenty-two cents ($429.22), upon four several promissory notes; that said claim is just, and there is now due thereon the sum of $429.22. Afiiant further says that the defendant fraudulently contracted the debt for which said suit is now brought, in the following manner: That is to say: On the 28d of Yanuary, 1884, and for some time prior thereto, and for several months after, said defendant was engaged in the business of selling agricultural implements at the city of Falls City, in said county and state, and the said Champion .Machine Co. was engaged in the manufacture of agricultural implements. That said defendant in order to get possession of a large amount of such machinery from said plaintifi company upon credit, and to defraud said company out of the value of the same, on the 23d day of Yanuary, 1884, at said Falls City, in said county, stated and represented to the agent of said plaintiff, in writing—and then and there signed said statement- that he, said defendant, possessed and was the owner of personal property of the actual value of $7,250, as follows: One frame warehouse, of the value of $600; a stock of implements in said Falls City, worth $3,000; twenty-six Turnbull wagons, worth $1.550; good and collectible notes due said defendant from individuals. amounting to $1,500; good and collectible accounts due from individuals amounting to $350; and cash on hand and in bank, subject to the check of said defendant, $250; and that the defendant on that date owed only the sum of $1,487. A copy of said statement is hereto attached and made a part hereof and marked “A.” And relying upon said statement and representations so at that time made. said Champion zllac/zine Company sold and delivered to said defendant its machinery and implements to the amount and value of $1,775.50, and took the individual promissory notes of said defendant for the whole of said sum, payable to its president, said Amos W/n'tely, and the notes sued on in said action are a part of said transaction, and the only notes yet due under said contract. except the first installment of said amount, which came due in October, 1884, and was paid by said defendant, and amounted to about $420. The remainder of said notes given at that time are not yet due except the ones sued on herein, and no part of said sum of $1,775.50 has been paid except as above mentioned. That the second installment of said notes became due on the first and four”: days of February, 1885. Afliant further states that said statement was false in this, that said warehouse was not of the value of $600, and said stock of implements and wagons were not worth the sum of $4,550, and said statement of the indebtedness at that time exceeded the sum of $1,487, and the said defendant did not have in bank the sum of $250 as stated; all of which was to said defendant at the time well known, and so by him wrongfully and fraudulently made for the purpose of misleading, deceiving, and cheating said company, and procuring their property without paying for the same. That a few weeks before the second installment of the notes given for said property became due, said defendant falsely and fraudulently pretended that he had failed in business and was unable to pay his creditors, and confessed judgment in favor of some of his creditors to the amount of about $1,400, and gave up to them a small amount of personal property to be sold on execution, and falsely and fraudulently pretended that he had given up all of his property. That the property so by him surrendered to some of his other creditors aforesaid has been sold on execution and realized only about the sum of $776, no part of which has been paid to or applied on the notes sued on herein or any of the notes given in said transaction.

1. This blank, which should contain the day of the month, appears in the afiidavit as set out in the reported case.

2 This form fulfils the requirements of Cons. Stat. Neb. (1893), t 5386, subs. 5. The amount in controversy, however, is too large to bring the case within the jurisdiction of a justice of the peace, his jurisdiction being limited by the Constitution to cases involving two hundred dollars or less.

8. In this case the defendant was

arrested and applied for his discharge on habeas corpus on the ground that the affidavit was insufficient to warrant his arrest; but the court held that the aflidavit tended to show that he fraudulently contracted the debt to recover which the action was brought, and therefore denied the writ.

4. The caption to this afiidavit is not set out in the reported case. For the form of caption in Nebraska, set title AFFIDAVITS, vol. I, p. 583.

Afiiant further avers that said defendant has property or rights in action which he fraudulently conceals, and alleges the following facts in support of this charge, to-wit: Affiant avers that on the 23d day of Yanuary, 1884, said defendant, for the purpose of obtaining a large amount of goods from the said Champion ‘Vac/zine Company as above alleged, made the statements and representations above mentioned, and contained in the paper hereto attached and made part thereof, marked “A.” That it appeared from said showing that at that time said defendant was the owner of personal property then in his possession in said county of the amount and value of $7,200, and that his total indebtedness at that time was only of the sum total of $1,487. That solely upon the faith and credit of that statement, representation, and showing, the said Champion [Vac/zine Company sold to him on credit, and delivered to him about [flare/z 20, 1884, goods, wares, and merchandise upon credit as aforesaid, to the amount and value of $1,775.60, making his assets according to his said statement $9,026‘. That said defendant received and sold the whole of said goods, wares, and merchandise so received on said statement during the summer of 1884 for more than $2,000, and has only paid the first installment of said notes which came due in Oclober, 1884, and amounted to only about $420. That the second installment of said notes came clue about February 151, 1885; and about Yanuary 1st, 1885, said defendant pretended to fail in business and be unable to pay his debts, and about Yanuary 20, 1885, confessed judgment for sundry other creditors, amounting to about $1,400, and claimed and pretended to turn out to his said creditors to be sold on execution on said judgments all of his property; and that the whole of the property so surrendered by him to his said judgment creditors was sold on execution and only realized about $776. That the homestead of said defendant was in the name of his wife, and worth about $2,000, and was not scheduled nor included in the statement annexed. That said defendant himself has contracted to convey said homestead to one William Happe at the agreed valuation of $1,900, and take in payment 174 acres of land in A’cmaba county, Kansas, at the agreed valuation of $8,000, said farm being incumbered to the amount of $1,100, which incumbrance said defendant has assumed and agreed to pay. That said homestead is incumbered to the amount of about $800, which said defendant has contracted to pay before said trade shall be definitely consummated. That said farm is unimproved, except that there is aboutfif{y-_fire acres in cultivation on it. That defendant is now making his arrangements to remove with his family to said farm and reside on it, and that he is intending to fence said land, build a house on it, and make other improvements thereon at once. All of which will involve the expenditure of considerable sums of money. as well as the payment of the mortgage on said homestead. Notwithstanding which fact said defendant has claimed and pretended to afiiant and others, and still does claim and pretend, that he had neither money nor property with which to pay or secure the claim of plaintiff or any part thereof. Affiant has repeatedly requested defendant to exhibit his books of accounts so that afiiant could see what had become of his property and money, but defendant always refused to do so, or make any showing whatever to what had become of his money or property. That just before defendant pretended to fail, and in the month of j‘anuary, 1885, he—defendant —took out of his stock of implements the following described articles, to-wit: One corn drill, two iron beam Sterling plows, one riding sulky plow, one walking cultivator, one corn sheller, one

corn planter, one wheat drill, one harrow; and stored the same in a barn about a mile from the city of Falls City, and about two miles from his residence, and neither surrendered them to his creditors, nor informed his creditors of their existence or whereabouts. And afliant says that it was the intention of said defendant to allow said machinery to remain so stored and secreted until he would have an opportunity to remove the same to his said farm in Kansas. Afiiant further says that said defendant from the 28d of Yanuary, I884, to Yanuary 1, 1885, was engaged in a profitable business, and made money therein, and, so far as afiiant can learn, met with no losses or reverses of any kind. Afliant therefore asks that an order of arrest may issue against said defendant, and that he be held to bail in the sum of $858.44. Yames Ill. Anthony. Subscribed in my presence and affirmed to before me this 12th day of illarch, 1886. B. Coupe, ‘ County Judge.

3. For Fraud in Concealment of the Property for Which the Action is Brought.1

Form No. 2259.

(Precedent in Dusy v. Helm, 59 Cal. 188.)?

[In the Superior3 Court of the County of Fresno, State of California. William Helm, plaintiff,


Frank Dusy, defendant.

I‘Villiam Helm, being duly sworn, says: I am plaintiff in above entitled action. This is an action to recover possession of personal property unjustly detained by defendant from plaintiff, described as follows, and of the value of five hundred dollars, United States gold coin. Description: One mare mule, about five years old, of a grayish-roan color, and one horse mule, about six years old, of a brown color, and one set of double harness. That defendant in said action did, on or about 19th October, 1874, fraudulently conceal and remove all said property, to prevent its being found or taken by the sheriff. That all of said property belongs to plaintiff That afliant has fully and fairly stated the facts of the case to C. G. Sayle and W'igginton ‘f .klarhs, his counsel, and they informed affiant that

Affidavit for Order of Arrest—
Fraudulent Concealment of Property.]‘

1. For a list of the states in which fraud in concealment of the property for the recovery of which the action is brought is a ground for arrest, see supra. note I, p. I20.

2. This afiidavit was drawn under the California Code Civ. Proc., Q 479, subs. 3. For other states in which the defendant may be arrested on the same grounds, see supra, note I, p. 120.

The affidavit in this case came before

the court as a defense in an action for false imprisonment, and was held by the court to be sufficient.

3. The proceedings were actually had in the old Circuit Court, but this has now been abolished and its jurisdiction transferred to the Superior Court.

5. The words enclosed in [ ]will not be found in the reported case, but have been added to render the form complete. '

« ForrigeFortsett »