The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1890-09-23

OPINION OF THE COURT PER JUDD, c. j.
On the 18th of April last the plain
tiff obtained Judgment against the
defendant in the Police Court of Ho-
nolulu for $4,000. The action was
assumpsit to recover the amount OF
two promissory notes. The defend
ant had no counsel, and confessed
Judgment. On the 18th of July the
plaintiff made a complaint under
oath to the Police Justice that de-
PENDANT seeks to evade the payment
of the said debt by transferring and
intending to transfer his property to
certain other persons unknown to
the deponent The plaintiff rendered
the statutory bond, which was APP
proved. A warrant for the arrest
and detention of the defendant was
issued, and he was accordingly ar
rested and imprisoned. The next
day the defendants attorney moved
the Police Court to dissolve the
attachment and discharge him from
custody on the ground that the war
rant was issued without authority of
law. The Police Justice granted the
motion, and discharged the defend
ant, from which the plaintiff appeal
ed to the Supreme Court in banco
upon the points of law involved.
Section 953 of the Civil Code con-
fers upon a court of record or police
court the authority to issue process
for the arrest and detention of a
fraudulent debtor. This statute
affecting the liberty of the person
should be construed strictly. Its
plain intention is to secure the pres
ence of defendant in civil action.
It is anciliary to such suit. The
complaint must be verified by the
oath of the plaintiff in suit, or some
person on his behalf" The COM
plaint must allege that the defendant
has contracted the debt in a fraud
ulent manner, or that he seeks to
evade the payment of the debt, first,
by secreting his property, second, by
transferring or intending to transfer
the same to any third party, third,
or is about to remove the same out
Of the jurisdiction of such court,
fourth. or is about to quit the King
dom. The process issued arrests and
detains the defendant until he shall
have entered into security with sutfi-
Gent sureties to abide the result of
such suit, and to pay the amount OF
such Judgment as shall be rendered
thereon" This language implies the
tendency of a suit, and detains the
defendant in custody in order that
he may not make away with his
property. But after judgment his
property is subject to execution. The
last paragraph of section 953, which
|. provides that no process of constralnt
! Shall be issued until the plaintiff
files a bond to reimburse defendant
for damages and costs p" which he
shall sustain in consequence OF such
arrest, in case the plaintiff shall fail
70 sustain such suit" has no meaning
f the warrant of arrest issues after
Judgment. for in such case the plain
tiff has already sustained his suit.
The warrant OF arrest, therefore, was
not authorized by the statute. 1t is
not necessary to consider the further
point made by plaintiffs counsel,
that the Police Court, being OF Inn
tied Jurisdiction, has no power to
discharge its own writ, there being
no especial authority in the statute
for this. The defendant has been
discharged from custody, and he is
now at liberty. He is in no danger
of being arrested again on the same
ground.
The appeal is dismissed.
c. W. Ashford for plaintiff; j. A.
Msgoon for defendant.
Honolulu, August Z, 1890.