Year: 1861

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CHIEF JUSTICE ALLEN said


The plaintiff brought an action against the de-
fendant, claiming of him the amount of promis-
sorry note, bearing date the second day of Novem-
Der last past, with interest which he alleges the
defendant executed and delivered to him. and that
although often requested, he had refused and neg
lected to pay: and the plaintiff, on oath, further
averred that the said defendant was about to quit
the Kingdom, having made no provision for the
payment of said note. Whereupon the plaintiff
prayed that the process ofarrest and detention might
issue against said defendant, and that he might
be detained until he gave bonds to abide the result
of this suit, which was allowed. The defendant
was thereupon arrested and held in custody, and
now comes into Court and moves that the attach
ment be dissolved, and that he may be discharged
from custody. He files an affidavit, in which he
AYERS that he is about to leave the Kingdom, for
few months, in the exercise of his regular bus-
ness as whaleman, for which purpose he proposes
TO proceed to the Coast of California in the schoon
er Emma Rookie, Of which he is first officer that
he expects to return in the Spring next ensuing,
when he intends to pay all legal claims against
him. that he has intention to avoid or evade his
debts. He further alleges that the plaintiff has
the control of all the catehings of oil made by the
schooner Maria during last winter, and in which
the defendant has an interest, and which he is in
formed and believes to be amply sufficient to pay
all the legal claims which the plaintiff holds against
him. The defendant further alleges that the plain
tiff has not instituted this suit for the purpose of
recovering the debt as set forth in his complaint,
but to prevent him from prosecuting his intended
voyage, in which he will compete with the whale
ship Harmony, owned by the plaintiff, and in which
the plaintiff solicited the defendant to ship for said
voyage.


The plaintiff files an affidavit, in which he AYERS
that he has not sufficient means OF defendants in
his hands to pay the demands he has against him,
nd that tha defendant has rnoda suoh claim
previous to this suit, and that he never solicited
defendant to ship on board the Harmony He fur
ther that the defendant has no ties in this
country to induce his return, that he is Of.
Evidence was adduced, showing the amount of
disbursements of the schooner Maria for the whal
ing voyage to the Coast of California, as referred
to in the defendants affidavit and also Of the


ceipts from the sale of certain articles belonging
to the adventure, and returned in the vessel, and


the probable result of the shipment of the oil taken
| by the schooner Maria, made to Bremen. Mr..


Hackfeld testifes that the oil had been sold in ad


vance of arrival. 1t appeared further that there


we're certain other articles of some value remain
ing unsOld. As there were counter allegations in
relation to the validity ofahe claim, the Court de-


sired to hear evidence so far at least as to be able


to Judge whether there was an Indebtedness. Both
parties introduced such evidence as they thought
proper, and 1t appears, from the accounts stated
and the evidence adduced that the defendent is
justly indebted to an amount about equal to that
OF the note declared on. The Court Will take this
occasion to say, that this amount is not IN the na-


ture OF an adjudication, for, when the parties


present their case to Court and jury, these pro-
ceedngs can have no influence or relation Dut III


became necessary to know whether the plaintln
could make out prima facie case. Ihe court
will further state that the defendant did not present
evidence in relation to material iCeus vi Tic
account to which he objected.
In support of the motion, the counsel for the ae-
fendant contends. 1st That the complaint was IN
sufficient in not alleging that the debt was uue ana
unpaid
The plaintiff follows the form prescribed by stat


ute-he claims of defendant a certain sum of mon
sy according to defendants note, setting it forth in
detail. | understand this claim TO be of the
amount of the note due and unpaid and that al
though often requested to pay the same, he has re-
fused and neglected so to do. The counsel con-
tends it is sufficient for a declaration, but not for
an arrest. Under tho statute, the party filing
complaint, and before process can issue upon it,
must make oath to its truth, that he claims GER
tain amount according to the tenor of certain IN
strument. Is not the oath mOckery, unless the
construction obtains that the amount as set forth
in the note or contract he claims due and owing
him. The form being prescribed by the statute,
must be regarded by the Court, and so far as pre-
cedents have been consulted they sustain this con-
structiOn.


1t is further contended that it is not alleged that
the defendant is about to leave the Kingdom with
the fraudulent intent to evade the payment of the
debt, and that an intended departure to foreign
country in pursuit of ones legitimate business
does not subject one to the liabilities of the stat
ute and that it must be with the intent to defraud.
In the case of Taubuson Harrison, 8 Vesey, 80.
1t appeared that the plaintiff, an executor, moved
that writ of ne Great reSnO might issue, to res
train the defendant, his coexecutor, from quitting
the Kingdom. The affidavit stated that the defend
ant was the Captain of ship, trading to the Is
land of Barbados, and that he had collected
great part of the property cO-executor; that he
is going abroad, and the debt will be wholly lost
or greatly endangered. Lord Chancellor Eldon
expressed some doubts whether the affidavit was
sufficient not alleging that he was going abroad to
avoid the demand. His Lordship observed {" that
this is high prerogative writ, and is applied to
cases of private right. always with great caution
and jealousy, and that in this instance the defend
ant was only going abroad in the exercise of bis
usual business" but upon the examination of the
precedents, it was found that since the time of
Lord HardWiek it had been sufficient If the afida-
Wit alleges that the debt will be in danger of being
lost and the Court ruled that it was not necessary
to allege that the purpose of going abroad was to
avoid the demand, and made the order.


In this case the allegation is that the defendant
is about to quit the Kingdom, having made no pro-
vision for the payment of said note. Every coun-
try has its peculiar legislation for the collec
ton of debts and the arrest of debtors for pay
ment In the case referred to, Lord Eldon, after
examination, did not regard it sufficient answer
that the defendant going abroad in the exercise
of his usual business. 1t is apparent that debt
is in more jeopardy, if the debtor goes abroad eav
ing no property, than if he remains at home in his
regular pursuits. At period IN the history of
English jurisprudence the writ of Great Tegno
was regarded as high prerogative writ, and was
issued with greater caution than at present,
and this for many reasons-at that time an
arrest and Imprisonment for the non pay
ment of a debt, without assigning any special
reason, was legal Our statute is far more liberal,
and prevents this, unless the party prove GER