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

and belief" The o53rd section of the
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
belief 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 trutbfully. "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 matter, 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 al
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 well founded or not, but
the simple answer to be made in this
case is that our law does not require
this, and l 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 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,
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 tenable, that is, whether it
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:
T. "Upon a complaint verified by the
oath of the plaintiff y stating that
a defendant" has, etc.-that is, this
presupposes a suit by plaintiff against
defendant, and the process of arrest
: may be asked for contemporaneously
,, with the complaint, or it may be, as in
: this case, by separate complaint
: Now what must be alleged to entitle
, the plaintiff to ask for warrant? |
find that the statute requires one OF
( three circumstances to exist: 1, that
S he seeks to evade the payment of the
+ debt in fraudulent manner; 2, that
S he seeks to evade the payment of the
: debt, or liability to plaintiff, either by
secreting his property, or intending to
transfer 1t to third party, or is about
!, to remove it out of the jurisdiction Of
the Court; and, 3, that the defendant
is about to quit the Kingdom. The
:, statute does not say that the defendant
: must be alleged to seek to eyade the
. payment of his debt to the plaintiff,
: by leaving the Kingdom. The clause,
cor is about to quit the kingdom" is
not coupled with any such antecedents
,, 1t stands alone as one of the causes
upon which warrant of arrest for a
9 debtor may issue.
e There is much force in the argument
made that the leaving of the Kingdom
!. by defendant may not nnperi the
. collection of the plaintiffs claim This
: is particularly true of residents here
: possessed of landed property. Then
presence in Court is not necessary to
) the enforcement of claims against them.
i 1t may be that the changed circum
a stances of this country since this law
& was enacted make it desirable that this