NG WEE V. TANKIANSEE (REMEDIAL)

For a writ of attachment to issue under this rule, the applicant must sufficiently show the factual circumstances of the alleged fraud because fraudulent intent cannot be inferred from the debtor's mere non-payment of the debt or failure to comply with his obligation. The applicant must then be able to demonstrate that the debtor has intended to defraud the creditor.

In the instant case, petitioner's affidavit is bereft of any factual statement that respondent committed fraud. As to the participation of the respondent in the transaction, the affidavit merely states that respondent, an officer and director of Wincorp, connived with the other defendants in the civil case to defraud petitioner of his money placements. In other words, petitioner has not shown any specific act or deed to support the allegation that respondent is guilty of fraud.

Considering therefore, that in this case, petitioner has not fully satisfied the legal obligation to show the specific acts constitutive of the alleged fraud committed by respondent, the trial court acted in excess of its jurisdiction when it issued the writ of preliminary attachment against the properties of respondent.

We are not unmindful of the rule enunciated in GB Inc. v. Sanchez, that the merits of the main action are not triable in a motion to discharge an attachment, otherwise, an applicant for the dissolution could force a trial of the merits of the case on his motion.