The daily herald. [volume] (Honolulu, Hawaiian Islands) 1886-1887, 1886-12-25

, D
code which authorizes the arrest of
debtor, prescribes that the complaint
shall be verified by the oath Of the
plaintiff or someone on his behalf In
this connection must consider another
objection made that the allegation,
that plaintiff "has good reason to be-
lieve and alleges upon information and
belle" that said j. H. Congdon is
about to quit the Kingdom, is INSULT
cient, as it is not positive averment
that Congdon is about to quit the
Kingdom. am at loss to perceive
how matter which is an intention
merely of another person can be other
wise alleged truthfully. "Being about
to quit the Kingdom" means that there
is an intention to quit the Kingdom
which is about being carried out This
may be locked entirely in the breast
Of the party SO intending and only his
acts and words which indicate this may
be known to the plaintiff. This is a
purely statutory natter and, as Chief
Justice Allen says in Huntley's case,
when the statute is followed the allow
ance Of the writ is matter Of right.
Our statute does not require, as the
Canadian statute, that it must be all
legged that the plaintiff has reason to
believe and verify believes, for reasons
specially stated in the affidavit, that
the defendant is about to quit the
Kingdom. 1t may be that the statute
should require that the reasons which
have operated to induce the belief that
the defendant is about to quit the
Kingdom should be specially stated in
the complaint 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 our law does not require
this, and | am of the opinion that an
allegation that the plaintiff has good
reason to believe and alleges upon
information and belief that the defend
ant is about to quit the Kingdom, veri-
fed by oath in the same way, that is,
that the facts stated are true to the best
of the atlantis information and belief
complies with the statute and is suffi-
Gent.
The remaining point is that there is
no proper allegation of a 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, with
out having made provision for the pay
ment of the debt. AS regards the
point that no debt is alleged to be due,
l think that as this is petition for the
arrest of the defendant, auxiliary to the
former suit between the parties, the
former declaration was presumably re-
ferred to by the justice who granted
the warrant. This states most unequi-
vocally that the debt for freight be-
came due on the arrival at Honolulu
of the vessel which carried the petition
er's live stock. The petition for process:
of arrest sufficiently states it as well.
A critical study OF the o53rd section
of the Civil Code is necessary in order
to decide whether the last point above
made is teuable, that is, whether il
is essential to allege that the defen
dant is about to quit the kingdom
with the intention to evade the pay
ment of the debt. The law reads
"Upon complaint verified by the
oath of the plaintiff y stating that
defendant has, etc.--that is, this
presupposes a suit by plaintiff against
a defendant, and the process of ares
may be asked for contemporaneously
with the complaint, or it may be, as ii
this case, by a separate complaint.
Now what must be alleged to entitlt
the plaintiff to ask for warrant1
find that the statute requires one o
three circumstances to exist: l, tina
he seeks to evade the payment of the
+ debt in fraudulent manner; 2, tina
he seeks to evade the payment Of th'
debt, or liability to plaintiff, either b,
secreting his property, or intending t
transfer 1t to third party, or is abou
W lSlhONC IL Out VI luS JuiiotiSsiS" "
the Court; and, 8, that the defendant
is about to quit the Kingdom. The
statute does not say that the defendan
must be alleged to seek TO eyade thu
) payment of his debt to the plaintiff
by leaving the Kingdom. The clause
cor is about to quit the Kingdom" il
not coupled with any such antecedents
1t stands alone as one Of the causes
upon which warrant of arrest for
debtor may issue.
There is much force in the argumen
made that the leaving of the Kingdom
by defendant may not imperil the
collection Of the plaintiffs claim Thi
is particularly true of residents herr
possessed of landed property. Thei
presence in Court is not necessary t
the enforcement of claims against them
1t may be that the changed circum
stances of this country since this law
was enacted make it desirable that thi