IN BANCO,
MONDAY, JULY 11. ( 'efore His Honor Mr Justice Ward.) OORSBIR V WIUY AND OTHERS Motion for writ of prohibition. Mr Oaygill for plaintiff, Mr Purnell for dofendantß, John O*r and Robert Alcorn. The pleadings In fhia oaaa showed that the defendants iVteaavs Orr and Aloorn hud taken ont a jiHgmont sumaiona In thß Resident Magiasrate'a Oonrt, %t Ashburton p.gainat tha present plaintiff Lew r B B. Oorabie, and the owe was originally act down for hearing on the 15 h March las' ; but was adj urned at Oota'-i-i's requeat aatll the 14' h June. The judgment summons accordingly cam 3 on for hearing that day. Oorsble did not attend, and m his absence the Resident Magistrate m»de ah order dlreoting him to pay the amount of the judgment debt by instalments of £5 a month, or m default one month's imprisonment. Oonduot money was paid to Oorabie when the judgment summons was originally served on h'm, but none was paid m respect; of the adjourned hearing. Mr Purnell objected that the Dotioe of a motion was irregular, inasmuch aa it did not set out the preoise grounds on whloh it was Intended to move, but merely alleged that the judgment order was " bad m law," Rule 395. Eeid v BisJwp. 4 N.Z. L.R., L.0., 222.
Mr Oaygill said the notloe had to be hastily prepared as the debtor only hoard of the judgment the day before the first icotalment was made payable. Re (Mr Oaygill) had since written to Mr Purnell stating more fully the grounds on which it was intended to move, but It appeared the letter had not been received.
His Honor said that exculpated Mr Oaygill, bat it did cot exaalp»te his client, whose duty It was to have attended the Court oa the day 6xed far the adjjurned hearing.
Me Oaygill said his client had not been ptld any oonduot money for attending on that day;
Mr Purnell said that he had been paid oonduot money m the first lntano^, and his (Mr PurneU'tj) contention was that inasmuoh as the hearlnc of the summons was adjourned at Gorable's request and for his convenience, he wis not entitled to any farther oondaot money. His Honor said he must rale against Mr Oaygill on this point. As to the notice of motion It was undoubtedly bad, but, inasmuch as If It were struck out, a fresh notice of motion could be served, possibly counsel would like to arrange tbe matter. Mr O»yglll said his prinolpal point was that the Magistrate had no power to make an order for payment by Instalments, with a penalty attached.
Mr Puroell said if the argument were oonfioed to this point, he would let tbe case go on.
Mr Gay gill then argued at length that if the Resident Magistrate made an order for payment of the jadgment debt by ioßt&lmonts, he had no power to order that, If default were made In payment of any instalment, the debtor should be liable to impris >nma&t, and this having been done m the present Instance; the order was bad. The proper courae was for the Magla rate to mike aa order for piymant by inßtalmonts euly ; and then, If the debtor made default m paymeut of any los'alment, he should be brought before the Court again, and if the Magistrate were satisfied he had had means to pay the instalment., he could then b 1 ) committed to prison. Mr Oaygiil cited English oaee3 ia support of his contention, and also the New Zealand oase of In re Spring, decided by Mr Justioe Williams.
Hia Honor aa'd the English oases did not apply, Inasmqoh as they tamed upon the wording of Tha Debtor's Act, 1869. which diff-red from that of the New Zealand Imprisonment for Dabfc Act. m i>e Spring was against Mr CUygill. l>i tha-. case Mr Jnatice Williams held that If a jidgment debtor did or omlttod to do auyc'iinK which enabled the Ooart to order his Inmediate Imprisonment, tbe Ooart might,. ln place of directing hln Inmediate imprisonment, make an order for the payment of the debt by Instalments, with the penalty of imprisonment attached for default In payment of any instalment. That was extotly tho present case, as Oorcble, by failing to attend at the adjourned hearing, bad rendered himself Hab'f.|to immediate Imprisonment. Motion rafuaod, with oosta. . •
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Ashburton Guardian, Volume VII, Issue 1892, 13 July 1888, Page 2
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728IN BANCO, Ashburton Guardian, Volume VII, Issue 1892, 13 July 1888, Page 2
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