The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1886-12-25
Aupreme Court.
AT CHAMBERs-BEFoRE JUDD, L. ).
EprD.N- nooar,l nor oath


writ on habeas corpus. Messrs. Ashford
& Ashford, Hon. Paul Neumann and
Mr. J. T. Dare for petitioner; Mr.. F.
NJ Hatch for the Marshal, respondent.
His Honor, in delivering judgment, said
The petitioner on the goth instant was
sued by one Ackerman, Master OF the
schooner Geo. c. Perkins, who claimed
$500 63 for freight and primage on $50
hogs shipped for Honolulu from San
Francisco by Congdon at his risk, and
alleging that frei ght was due and paya
Die at Honolulu on the 1Sta of October,
when the hogs were delivered to him,
except such as had died on the passage.
On the 22d the plaintiff. by his attorney
presented d petition, entitled in the
above action, to Justice OF this Court,
alleging that Alderman had brought
suit against Congdon to recover certain
amounts for freight of live stock due as
above; that the petitioner had good rea-
son to believe, and alleges upon infor-
nation and belief, that Congdon is about
to quit the Kingdom; whereupon he
prays that process may issue Tor the
arrest and detention of said COngdon
until he shall have entered into security
with sufficient sureties 10 abide the re-
suit of said suit and pay such judgment
as shall be rendered therein. The JUS
tice applied to allowed the process to
issue on the filing of a bond of $500 to
indemnify Congdon in case plaintiff
fails to maintain his suit, and the arrest
was made on the same day. The petit
toner next day applied for a writ OF
habeas corpus, which was issued and re-
turned the same day.
His Honor thinks the best course to
pursue would be to apply to the Justice
who authorized the writ, on a motion to
dissolve the attachment and discharge
the respondent from custody. This
would avoid the unseemly clashing OF
authority which might occur. One OF
the grounds for claiming that the pc
titioner should be discharged is that the
bond rendered by plaintiff is not sealed
with the seals OF principal and surety.
LIS IAOiIOA lIOIIib LAielI Vic S'SAl 10 IiOI
necessary. A more important objection
is that the jurat is insufficient. 1t was
urged that the oath should be positive
and not that the facts were "true to the
best of the knowledge and BELIEF of the
applicant. Having quoted authorities,
His Honor considered in this connection
another objection, that the allegation
that plaintiff "has good reason to be-
lieve and alleges upon information and
belief" that COngdon is about to quit the
Kingdom is insufficient, as it is not a
positive averment. His Honor con-
tinued: l am at loss to perceive how
an intention merely of another person
can be otherwise alleged truthfully.
X This may be locked entirely in
the breast of the party SO intending, and
only his acts and words indicating this
may be known to the plaintiff. Having
quoted the statute, he said 1t may be
that the statute should require.
that the reasons which operated
to induce the belief that the
defendant is about to quit the Kingdom
should be specially stated in the COM
plaint in order that the Court may be
able to determine whether the belief is
we'll founded or not; but the simple
answer to be made in this case is that
the law does not require this, and His
Honor is of opinion that the allegation
complies with the statute and is sufh-
cient.
The remaining point is that there is
no proper allegation Of debt due and
owing or that the defendant is about to
quit the Kingdom with the intent to
evade the payment of his debts or, what
would be nearly equivalent, without hav-
ing made provision for the payment of
the debt. AS regards the point that no
debt is alleged to be due, His Honor
thinks that as this is a petition for the
arrest of the defendant, ancilliary to the
former sui, between the parties, the
former declaration was presumably re-
ferred to by the Justice who granted the
warrant. This states unequivocally that
the debt for freight became due on the
arrival vi lilC NSoSC1 at 14OllOluAu' A1AC
petition for process of arrest sufficiently
states it as well. After referring to the
statute, His Honor found that it required
one of three circumstances to exist to
entitle the plaintiff to ask for warrant:
~ That the defendant has contracted
the debt in a fraudulent manner ~
That he seeks to evade the payment of
the debt or liability to plaintiff, either
by secreting his property or transferring
or intending to transfer it to a third
party, or is about to remove it out of the
jurisdiction of the Court 81 That the
defendant is about to quit the Kingdom.
The statute does not say that the de
PENDANT must be alleged to seek to evade
the payment of the debt by leaving the
Kingdom. The clause cor is about to
quit the Kingdom" is not coupled with
any such antecedent. 1t stands alone as
one of the causes upon which a warrant
OF arrest for debtor may issue. There
is much force in the argument made that
the leaving of the Kingdom by a de-
PENDANT may not imperil the collection
OF the plaintiffs claim. This is particu-
larry true of residents here possessed of