KOURANY et al. V. HALMAN et al.

the Canal Zone with intent to defraud his creditors. It is plain that the order of arrest should only be granted in an action of the kinds specified which is already pending or which is begun by the filing of a complaint simultaneously with the presentation of the affidavit required by section 429. The insolvency proceeding is not such an action. If, nevertheless, it be objected that in an involuntary insolvency proceeding there should be some remedy against an insolvent debtor who is concealing or attempting to conceal his assets, it may be answered that if it were shown that the insolvents. had refused after due demand to deliver any assets to the receiver already appointed, it would have been possible to proceed against the insolvent in such manner as to punish them for a contempt of court.
In respect to the disposal of assets, however, and of the other matters attempted to be alleged to secure the order of arrest, the affidavit is totally defective. It does not comply in any respect with the provisions of section 429 of the Code of Civil Procedure. This section is as follows:
A judge shall grant an order of arrest when it is made to appear to him by affidavit of the plaintiff, or some other person who knows, the facts, that a sufficient cause of action exists, and that the cause is one of those mentioned in section 427.
It is not necessary to enter upon a lengthy discussion as to the meaning of the foregoing section. Lt means what it says. It does not mean that the judge shall be satisfied by a promise to present proof and facts at some future date. (See first section of the affidavit). It does not contemplate allegations which are merely enlargements of the legal phraseology of the provisions of the code. On the contrary the intendment ot the section is that the affidavit shall actually and positively set out acts which make a prima facie case of such a nature that the judge may conclude therefrom that the cause of action in which arrest is asked is one of those mentioned in section 427.
Now the affidavit under consideration is not one containing positive allegations of fact. It was not made by a plaintiff knowing the facts for there was no action pending, nor was it made by any other person knowing the facts, for its averments are based on information and belief. There are no suggestions as to the basis of this information and belief, and the allegations thus made on information and belief are hardly allegations of specific facts but largely a strange mixture of generalities and conclusions of
MR 36336-19

289