The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1890-12-30
Supreme Court of the Hawaiian
Islands.
in BancO.
OCTOBER TERM, 1890.
KAN WING CHEW VS.. Woke LUNG.
BEFORE JUDD, C. j., M'CULLY, BECKER
TON AND DOLE, j. j.

OPINION OF THE COURT PER JUDD, C. j.
This is an appeal by plaintiff on
points of law from the Police Court
of Honolulu. The essential facts are
as follows:
On August 81, 1889, the plaintiff
obtainted a Judgment against de-
PENDANT in the Police Court of Homo
lulu for $226.35. The judgment was
not paid, and year having elapsed
so that no execution could be taken
out thereon, plaintiff brings an &C
ton in the aforesaid Court on the
judgment.
Coincident with the application
for the summons, the plaintiff made
affidavit that defendant now seeks
to evade the payment of the said judg-
ment by secreting his, said defend
ants, property, and by transferring
and intending to transfer the same
to third parties not certainly known
to this defendant" and on this
affidavit and the filing of the bond
required, in pursuance of Section
953 of the Civil Code, the Police JUS
tee issued warrant for the arrest
of the defendant and his detention
until he should enter into security to
abide the result of the suit and pay
the amount of such judgment as
might be recovered by the plaintiff.
At the trial below, on September
LIST, the plaintiff proved his judg-
ment debt and obtained Judgment
therefor The defendant then moved
for his discharge from custody on
the ground that he was guilty of no
fraud and had not sought to evade
the payment of his debt by secreting
his property or by transferring or
intending to transfer the same to
third party.
On the evidence adduced, the
Police Justice found no fraud as
alleged and discharged the defend
ant from custody.
The plaintiff appealed to this
Court in Banco, and contends that
there is not in the statute in question
nor elsewhere in our written law,any
authority for the discharge of such
defendant, after his arrest upon pro-
cess, in regular form, issued in said
section, without his giving the speci-
fed security"
The only statutory authority for
the discharge of persons in arrest for
any cause or accusation is the gen
eral provision in Section 1913. that
" the criminal Jurisdiction (of Police
Justices) shall be co-extensive with
their respective circuits for the pur
pose of the arrest, examination, com
mitment and enlargement of parties
accused" The case at bar is not
criminal, nor a crown action, but it
has penal character. The defend
ant is Hereunder imprisoned. He is
a party accused, to wit, of a fraud.
He is entitled to hearing. If he is
found not guilty is he to be held |
equally as if he were guilty? 1t |
would be anomalous and an excep-
ton to the general power of " en-
largement" This term includes not |
merely release from Imprisonment,
but release from the condition of |
giving a bond. The process of arrest
was granted upon specific alleged
grounds. When it appears that they
do not exist has not the magistrate
power to vacate his order?
It does not seem to be a forced
construction to hold that it comes
within the terms of the statute we
have cited, and if it were not ex-
pressed it would be implied by the
statute otherwise a debtor commit
ting no fraud might be kept in pri-
son as long as his creditor was will
ing to pay the per diem of fifty cents
for his support. Appeal dismissed.
G.. W. Ashford for plaintiff; ]. nj.
Davidson for defendant.
Honolulu, November Is, 1890.