Thompson v. Friedberg

54 How. Pr. 519

Opinion

Daniels, J.

The affidavits, taken together, support the conclusion on which thé order of arrest was made, that the defendant had removed or secreted his property with the intent to defraud his creditors. When the arrest proceeds upon that fact, it is extrinsic to the cause of actión, and not to be stated in the complaint. That rule of practice has become perfectly well settled at the present time. The order of arrest should have been subscribed by the plaintiff’s attorney (Code, secs. 561, 562). The statute upon this subject is imperative. It has not been complied with in this case. The surety in the undertaking should also have sworn that ■ he was worth the amount specified in the affidavit, exclusive of property exempt from levy and sale under execution. That was omitted in the affidavit which was attached to the undertaking for the purpose of obtaining the order of arrest; For these defects the order of arrest must be set aside, unless within five days after notice of this decision the order of arrest be subscribed by the plaintiff’s attorney, and a copy so subscribed be also delivered to the defendant or his attorney, and an affidavit be attached to the undertaking in the form required by section 812 of the Code; and the plaintiff pay the ■ defendant’s attorney ten dollars costs of this action.