Year: 1861

the ordinary process of Courts of Equity. The
statute under which this arrest is made preserbes
that 1t shall be lawful for the Court to order the
arrest of debtor, upon a complaint verified and
du filed that the defendant has contracted debt
in fraudulent manner, or seeks to evade the pay
ment of any debt any other liability due to such
plaintiff by seereting his property, or by trans
ferring, or intending TO transfer the same to any
third party or is about to remove the same out Of
the jurisdiction of such Court, is about to quit
the Kingdom. The statute very clearly regards in
strict construction of its terms, that if one Sc
cretes his property transfers it to third parties
or is making effort to remove it out of the uris
diction or if the debtor is about to quit the King
DOM that it is a seeking to evade the payment of
the debt, and the Court is empowered by proof of
either of these acts to order the arrest and deten
tion of debtor 1t is not an Imperative duty
the Court has the discretion, on the examination
of the circumstances Of each case, to decide
whether it is reasonable that security should be
given to abide the result of q suit, and pay the
amount of such judgment as may be rendered.
The Court will carefully examine, if the person
arrested desires it, into the merits of the case,
that he NAV not be detained on groundless claim,
and for malicious purpose. There would not be
the same reason for arresting merchant IN full
business, and in good credit who proposes to go to
San Francisco to replenish his stock, as there is
for arresting a person, who leaves the Kingdom,
without leaving any property to respond to a
Judgment which may be recorded against him.
The examination of case will enable the Court to
Judge whether the rights of party are endangered
by his debtor leaving the Kingdom and II they
are, this is a proper and legitimate process. The
object and intent of the law is very clear, that the
subjects and residents of the Kingdom shall not be
compelled to send abroad to collect their debts
contracted here, and especially in the instance oil
those men whose pursuits attract them from one
country to another. In this case each party Is
sangune of the justice of his position, ana each
has a right to a trial by Jury, and while the de-
fendant insists on this mode of settling the contrO
versy, he should not absent himself without Ieav-
ing property or security so that if a Judgment IS
obtained against him there will be means OF salts
fying it. 1t would be doing injustice to creditors
here, not to afford them at least THIS REDRESS.
Under our laws q very great liberty Is extended TO
debtors. but it should be limited to the boundaries
of the Kingdom. 1t would be virtually denial
of justice to compel our people to seek redress IN
foreign countries Here the debt is Contracted,
here the testimony is, and here is the admnlstra-
tiOn of the law under which the contract was
made-and would it not be virtual denial OF
justice to compel people to go to foreign
country to employ counsel, take out commissions
to take testimony and inform the Courts abroad
of the laws under which the contract was made,
and submit their case to foreign tribunal The
Passport law sustalns this construction 1t IS not
an oppressive case for the defendant to give the
necessary security, if he is right in his view OF the
accounts, his sureties will have nothing to pay, if
he is wrong, he should pay whatever balance is
due. The plaintiff has given bond to indemnify
him from all injury and damage arising from the
arrest, if he does not sustain his suit. The Court
sees foundation for the allegation that the
plaintiff has instituted this suit to prevent the
defendant from prosecuting his intended voyage to
the coast of California. His management Of the
business especially after the arrival of the Maria
and her catchings of oil, has been especially re-
gardful of the interest of his associates. BY the
terms of the contract, it was not incumbents on
him to pay the debts incurred in the enterprise,
such seamens lays, &C., &C., the oil might have
been sold, and if there a sacrifice the parties
must equally bear it, Instead of resorting to this
summary process the plaintiff paid all the debts
and shipped the oil to Bremen, expecting better
price than this market offered, all which would be
for their mutual benefit. His offers to take the
property remaining unsold certainly fair and
liberal In view of all the circumstances of the
case, can see reason for this harsh allegation
against the plaintiff


Motion Overruled.


Mr.. Harris for plaintiff; Mr.. Montgomery for