The daily herald. [volume] (Honolulu, Hawaiian Islands) 1886-1887, 1886-12-25
THE HABEAs CORPUS CASE.
e''i.on , demanded into Custody and
Ful Text Of the Chief Justices
Decision.

cislon OF the Chief Justice, on the
petition of J. H. Congdon for release
from the custody of the Marshall
Supreme Court Of the Hawaiian
Islands. Before Chief Justice Judd, at
Chambers.
Inc petitioner on the 10th inst. was
sued by one Alderman master of the
schooner Geo. c. Perkins, who claims
$59o.63 for freight and primage on
$50 hogs shipped on board this vessel
at San Francisco for Honolulu, by
Congdcn, at his risk according to the
bill of lading, and alleges that the
freight was due and payable at Homo
lulu on the 18th of October, 1886,
when the hogs were delivered to him
except such as had died on the pas
sage On the 22nd the plaintiff, by f.
A. Schaefer his attorney in fact, pre-
sented petition, entitled in the above
action, to Justice Of this Court, al
eging that the said Alderman, as
master of the said G.. c. Perkins, had
brought suit against said Congdon to
recover certain amounts for freight
upon the carriage of live stock, which
became due and payable at Honolulu
on the arrival of the said vessel on the
-day of ----, A. d. 1886:
that this petitioner has good reason to
believe and alleges upon information
and belief that said ]. H. Congdon is
about to quit this Kingdom; therefore
he prays that process may issue for the
arrest and detention of said j. II.
Congdon until he shall have entered
into security with sufficient sureties to
abide the result of said suit and pay
such judgment as shall be rendered
thereon. The instrument is as fol-
lows
Hawaiian Islands, Oahu, S. S.
Personally appeared +. A.
Schaefer and made oath that the mat
tiers above alleged are true to the best
of his knowledge and belief Sub
scribed and sworn, etc.
"F. A. ScHAEFER."
The Justice applied to allowed the
process of arrest ito issue on the filing
of a bond in the sum of $500, condi-
toned to indemnify said Congdon in
case said plaintiff fails to maintain his
suit, and the arrest was made on the
same day. The petitioner on he next
day applied to me in due form
for writ of habeas corpus, which was
issued and returned the same day.
wish to remark in limine that
though persons committed on mesne
process in any civil action in which
they were liable to be arrested and i'm
prisoned, except when excessive and
unreasonable bail is required, are not
entitled as of right to demand and
prosecute the writ of habeas corpus, a
Justice of the Supreme Court is al
lowed by subsequent section of the
act the discretionary power to issue a
writ OF habeas corpus ad subjiciendum
. where it is not demandable of right,
and thereupon to admit to bail or tc
discharge the petitioner as law and
Justice may require. This gives me, al
my discretion, authority to review the
acts by which the arrest on mesne pro
cess in a civil action was obtained.
/ still think as ntimated at the argu
ment, that the best course to pursue
would be to apply to the Justice who
authorized the writ, on a motion to dis
solve the attachment and discharge the
respondent from custody. This, would
avoid the unseemly clashing of author
ity which might occur This was the
course followed in the case Of the King
VS.. Huntlcy, Hawaiian, 457.
One of the grounds for claiming that
the petitioner should be discharged is
that the bond rendered by the plaintiff
in asking for the process of arrest is
not sealed with the seals of the princ
pal and surety. find that the instru
ment is in substance bond, and or
the authority of Mann VS.. Campbell, 4
Hawaiian 45o, | hold that a seal is moi
necessary. The common law defnI
ton of bond is an obligation TO pay
money and it must he sealed, but, az
repeatedly laid down in this Court, the
common law is not in force in thi:
Kingdom, any further than its reason
ings and principles have been adopted
There is no statute here defining
+ bond to be sealed instru
ment or making seal essential to Its
, validity any more than to conveyance
of law. The distinction between seal
ed and unsealed instruments is not pre-
served in our code, and | know OF nc
reason why an obligation which pur
ports to bind the obligors to pay Ger
, tain sum of money to the obllgee OF
the contingency named should be de
+ feated because the artificial and forma
act of affixing wafer or making
scroll after the names of the obllsor
has been omitted. BY all the author
| ties, moreover, the omission can BIZ
, supplied.
! A more serious objection is that thu