
    DE WEERTH a. FELDNER.
    
      New York Common Pleas; General Term,
    July, 1863.
    Affidavit to obtain Order of Arrest.—Setting out Sources of Information.—Production of Written Instrument.
    To justify an order of arrest, where some of the material allegations of the affidavit are upon information and belief, the sources and nature of the information must be particularly set out, and a good' reason given why a positive statement cannot be procured. Documents relied on must be presented, or copies furnished.
    
      Thus, where the affidavit to obtain an order of arrest set out material facts on information derived from a notarial act duly certified, and from a letter of the defendant, but omitted to set out the contents of these papers, it was Held, insufficient.
    
      The rule, that one shall not resort to inferior evidence when he has it in his power to produce evidence affording greater certainty of the fact in question,—applied to an affidavit to obtain an order of arrest.
    Appeal from an order discharging an order of arrest.
    This action was brought by August De Weerth, Jr., against Albert Feldner, to recover the amount of a debt alleged to have been fraudulently contracted. The parties were residents of Prussia, and the debt was contracted there. An order of arrest was issued, on the ground that the defendant had been guilty of a fraud in contracting the debt for which the action was brought. The nature of the affidavit, upon which the order of arrest was issued, sufficiently appears from the opinion. The defendant moved to discharge the order of arrest on the original affidavit alone, urging two reasons in support of Ms motion: 1. Because the affidavit set out only the sources of information, whereas it ought to set out verbatim all the letters and documents which were the sources of information. 2. Because the contract had been entered into abroad, and the fraud alleged had been committed abroad. The court discharged the order of arrest, and the plaintiff appealed from this order.
    
      Bernard Roelker, for the appellant.
    I. The statute does not define the proof to be made on application for an order of arrest, except that it is to be by affidavit. The judge must exercise a sound judicial judgment upon the force and weight of the evidence produced. He - must be satisfied judicially. (Smith a. Luce, 14 Wend., 237.) Affidavits setting forth the sources of the information and belief, and the nature, and quality, and belief, are sufficient to warrant an order of arrest. (Peel a. Elliott, 16 How. Pr., 481; Whitbeck a. Roth, 5 Ib., 143; Crandall a. Bryan, 5 Abbotts’ Pr., 162; Blason a. Bruno, 21 How. Pr., 112; Hoffm. Prov. Rem., 46.)
    II. The judge who granted the order of arrest was satisfied with the evidence presented to him; it presented a primafacie case for an order of arrest. Ho counter-affidavits were produced at the hearing of the motion, therefore the facts stated in the affidavit must be taken for true.
    III. The fact that the alleged fraud was committed out of this State cannot take away the remedy "which the law has provided for all suitors. The lex fori is decisive as to the-remedies. (Westlake on Priv. Int. L., 390, § 408; Story’s Confl. L., § 591; 2 Kent’s Com., 462.) In the case of Smith a. Spinnolla (2 Johns., 198), both parties were foreigners and non-residents, and the contract made abroad; the court held that the remedy on contracts must be prosecuted according to the laws of the country in which action is brought, (Whittemore a. Adams, 2 Cow., 626; Peck a. Hozier, 14 Johns., 346; Andrews a. Herriott, 4 Cow., 508; Ib., 528, note; Brettelot a. Sandos, 4 Scott, 201; overruling Welan a. Fitz James, 1 Bos. & P., 138; Flack a. Holin, 1 J. & W., 405, 417; De la Vega a. Hanna, 1 B. & Ald., 284.) The case of Blasón a. Bruno (12 Abbotts’ Pr., 265) is not applicable. The order of arrest in the case at bar was granted under the 4th subdivision of section 179, viz., for reason that the defendant had been guilty of a fraud in contracting the debt.
    
      John Ooók ds Son, for the respondent.
    
      
       In Potter a. Sullivan (New York Superior Court; Special Term, 1862), the same rule was applied ; and it was Held,, that, in an action in which an intent to defraud creditors was relied on as a ground of arrest, positive allegations that the defendant was carrying on business at his stores on the day when the demand was presented, and then told the plaintiffs to call in three days and he would pay it; and that on the third day both his stores were in possession of other persons, claiming under a bill of sale dated the preceding day ; and that the defendant could not be found on diligent search; together with allegations, on information received from, such vendees, that the defendant had sold the stores on the day preceding,—were sufficient to sustain an order of arrest.
      This was a motion to vacate an order of arrest, and it was made on the original affidavits,
      Monbil, J.—I agree with the defendant’s counsel, that an affidavit upon information and belief merely is not sufficient to authorize an order of arrest. The facts and circumstances must be stated, that the court may see from the evidence that it is a case wherein the defendant may be arrested. Having stated the facts, the court must judge whether they are sufficient to fairly-draw the conclusion that the act of the defendant was done with an intent to defraud creditors.
      In this case, the facts and circumstances sworn to by the plaintiff are :—
      I. The cause of action, which is sufficiently stated to authorize a judgment on failure to answer.
      II. That the indebtedness was chiefly for work or labor, performed in April and Hay, 1862.
      HI. The agreement of the defendant to pay for the work when finished.
      IV. That, at the time the work was done, he was carrying on business in a store on the corner of Grand and Mangin Streets, and had leased another store, 173 South Street, which he opened about the 24th of May, 1862.
      V. That defendant promised to pay the debt on the 24th of May, and when the plaintiffs called upon him on that day, they were told by defendant to call on the 27th, and get their money.
      VI. That, on calling on the 27th, they found other persons in possession of both stores, and saw the bill of sale of the South Street store, executed by defendant on the day previous.
      VII. That diligent search was afterwards made for the defendant, but he could not be found.
      These are the principal facts sworn to. The only facts stated on information, are that the persons in charge of the store on the 27th stated that the defendant had sold the stores on the 26th, and the purchaser of the South Street store stated that he had paid $900 to the defendant for the store, &e.
      From these facts I have no difficulty in determining that a prima-fade case of fraudulent intent is made out, sufficient to put the defendant to proof to remove the belief of design on his part to convert his property into cash, and with it to elude his creditors. After receiving payment for his store, he failed to keep his appointment on the next day, and subsequently kept away, and after diligent search could not be found. The putting the plaintiff off from the 24th to the 27th is calculated to confirm the belief that he was endeavoring to arrange his affairs in the interim to escape liability to his creditors. ■
      On the whole, I think the order must stand.
      , Motion denied, with $7 costs, without prejudice to renew the motion to vacate on affidavits.
      
        In Cummings a. Wooueet (Supreme Court, First District; Chambers, June, 1860), it was DM, 1. That a motion to vacate an order of arrest after the defendant has been discharged on bail is not a preferred motion; 2. That an allegation that certain representations of defendant, set forth, were false, as deponent had since learned, might be regarded as a positive allegation of falsity, and not as one on information and belief; and 8. That an irregular default, setting aside an order of arrest, does not in itself affect the validity of the undertaking given to the sheriff on the arrest, if the undertaking has not been given up or cancelled.
      Bonnet, J.—This motion to vacate the order of arrest, after defendant had been discharged on bail, was not a preferred motion. It was in no sense a motion to discharge from imprisonment. The default was irregularly taken, and must be opened.
      The affidavits on which the order of arrest was made, in my opinion, authorized such order. The allegation that the representations made by defendant to obtain credit (as set forth) were, as the deponent had since learned, false, amounts to a positive averment of their falsity. What the deponent had “leai'ned’’ he assumes to state that he knew,—and the sources of such knowledge, as they are not set forth, must be presumed to be sufficient to justify the statement.
      The only question now to be determined is, “ did the defendant make the alleged representations?" for if made, it clearly appears, I think, that they were not true in the sense in which they would naturally be understood by any one who heard them. The defendant denies that he made the several representations stated by plaintiff, or any one of them, or any statements to the like effect. The plaintiff swears positively that he did make them—and upon all the papers read on this motion, I am satisfied that he did make such representations, or statements equivalent thereto. The motion to vacate the order of arrest is denied, with S10 costs, to be costs in the action and abide the event of the suit.
      I do not think the order irregularly taken by default, and which is set aside, in any way affects the validity of the undertaking taken by the sheriff on the arrest, unless that undertaking has been destroyed or cancelled. If that has been done, it may be necessary to issue another warrant.
    
   By the Court.—Daly, F. J.

The rule upon which this court has uniformly acted in granting arrests upon information and belief is, that the sources of the information must he set out, that the judge may see whether the conclusions drawn are warranted by it or not. If the information is derived from letters or official documents in the possession of the person who makes the affidavit, or which it is in his power to procure, they should be presented with the application, or copies of them should be furnished. To adopt any other rule would be to substitute the conclusions of the person who makes the affidavit for that of the judge. The person who makes the deposition, as in this case, may infer from the information upon which he relies that the debt was fraudulently contracted, and that a cause for arrest exists; but the judge, upon perusing the papers or documents furnishing the information, may think otherwise. Where, therefore, it is in the power of the person asking for the arrest to lay before the court the sources upon which he has relied for the conclusion he has come to, he must do so; as it is the judge, and not he, who is to decide whether a cause for arrest exists or not.

The general rule is succinctly laid down by Judge Edmonds in Whitlock a. Roth (5 How. Pr., 143), in these words: “ So far as the facts may be within the knowledge of the plaintiff, they must be stated positively; but, so far as they necessarily rest on information derived from others, they may be so stated^ when the sources and nature of the information are particularly set out, and a good reason is given why a positive statement of them cannot be procured.” And again: “ The sources of the information obtained must be set forth, so that the court may be able to ascertain whether the party is right in entertaining the belief to which he deposesand to the same effect, substantially, are the cases of Vanderpool a. Kissam (4 Sandf., 715); Crandall a. Bryan (5 Adbott' Pr., 162); Blason a. Bruno (12 Ib., 265); Campbell a. McCormick (1 How. Pr., 251); Matter of Faulkner (4 Hill, 601). There is a distinction between stating the sources of information, and, as Judge Edmond says, “ setting them forth,” and it, is exactly the distinction which exists in this case. The person who makes the affi-. davit states as the sources of his information a letter written by the plaintiff, another, written by the defendant, and an official notarial act, drawn up at Elberfeld, in Prussia, according to law, and certified by the consular agent of the United States at Bremen; and from these documents, inspected only by himself, he draws the conclusion and swears to his belief that the defendant borrowed a certain sum of money from the plaintiff, at Elberfeld, in Prussia; with an intent not to pay it back again, but to defraud the plaintiff of it, and, shortly thereafter, secretly and stealthily left his place of residence and business, at Rotingen, in Germany, without disclosing to any one whither he intended to go or had gone. It was impossible for the judge to determine whether these documents warranted such a conclusion or not, unless he knew what they contained. The contents of some of them are stated, or rather the deponent’s conclusion as to their contents, and they are limited to two facts: that the notarial act referred to duly established the defendant’s indebtedness to the plaintiff; and that in the letter written by the defendant to a friend, he wrote that when the letter would be received he would be floating upon the ocean, bound to Australia, whither he intended to migrate,—which two facts are not of themselves sufficient to warrant the conclusion that the debt was fraudulently contracted; and yet beyond this nothing is stated as to the contents of the papers, which constitute the sole source of the deponent’s information.

It is presumable, from the affidavit, that the person who made it has perused the documents upon which his affidavit is based. If they are not in his possession, or if it was out of his power to produce them, or furnish copies of them to the judge when the application was made for the arrest, he should have so stated. Unless some such excuse is given, the familiar rule of evidence is applicable,—that a person shall not be allowed to resort to inferior evidence when he has it in his power to produce evidence affording greater certainty as to the.fact in question.

As the affidavit was defective upon be necessary to examine the additional judge below regarded it as insufficient, special term should be affirmed.. this ground, it will not ground upon which the The order made at the  