"THE SECRET CASE."

Dominion, Volume 4, Issue 1127, 15 May 1911, Page 6

"THE SECRET CASE."

FURTHER DELAY.

MACD.ONALD IN CUSTODY,

SOME NEW POINTS.

[ PLEA OF ILL-HEALTH

! COURT ALLOWS ANOTHER

ADJOURNMENT.

; At 10 o'clock on Saturday morning the • Hon. Thomas Kennedy Macdonnld, M.L.C., ' walked into the large Courtroom at the ' Supreme Court, in company with the I sheriff, Mr. D. G. A. Cooper. ' Nominally, at any rate, Mr. Macdonald : was in custody. The' sheriff conducted ' him to one of the seats in tho back row I of those provided for • counsel, and both , ! sat down there. Several members of the r legal profession wero gathered in the '■■ .body of the Courtroom, and there was an I audience, numbering at n later stago from ! twenty to thirty,'in the place set apart ;• for tho public. ' ; The upshot—after discussion of some in- ' teresting points as reported below—was en. adjournment to enable tho state of ! defendant's health to bo investigated bei fore tho Court deals with the question of j committing him to prison. I "'During tho later part of the prooeedi ings, : defendant, appeared to show signs ; of drowsiness, and closed his eyes as if ■ asleep for a short time. This circum- • stance is of interest in view of certain I affidavits-put in at tho hearing by his i counsel. , ■ Sir Robert ■ Stout (Chief Justice) and i Mr. Justice Chapman were on the Bench. ; What Led to the Arrest. '■■ .The proceedings on Saturday morning ! wero the outcome of the civil notion Rose ■ and 'Zithers v. ■ Macdohnld—generally : known as "The Secret Case." Tho plain- • tiffs (Mary Rose, Janet Mackay Rose, 11- ; len Roberta Greenfield, and John Green- : field) are beneficiaries '■ of 'the Greenfield : estate, which had been left in trust by • their parents (deceased), with tho defend- ; ant as trustee. The action was commenced ■ early in 1907,-and tho position . '.when the Court opened laat Saturday I morning'was the , direct consequence of Jin i order of the Supremo Court made on ' February 10 last, whereby leave was i given plaintiffs to issue n writ of attachment against the, defendant by reason of i lis having failed to comply with an order of the Court, made by consent in ! December, 1910. ; By this last-mentioned 1 order the defendant was required to pay , into Court the sum of 3s. 3d., due : hv him as trustee of the Greenfield es- ! tiite. It was established by subsequent ! proceedings (culminating last month in a '■■ review of the whole matter by the Court '< of Appeal) that the writ of attachment 1 could issue, in respect of "the sum of ,£3264 I ss. ?d. The judgment of the Court of ! Appeal was delivered on April 25, and i Saturday last was subsequently fixed bv • the Chief Justice as the dato ou which ! the defendant was to be produced in f Court by the sheriff—which', as stated > above, was duly carried out. 'The Writ of Attachment. The writ'under'which the : defendant : was.brought iiitti Court by the sheriff was ; in the following terms:— " : "We hereby command you to attach ' ; .Thomas Kennedy Macdonald, of Wellington, auctioneer, aud to havo him here before the. Court at 10 o'clock in the. forenoon of Saturday. '. there to answer to such matters as are then and there laid >to his charge, :'■ and further to. perform and abide such ; order as the Court shall make, and ; kbep : ium in, the meantime in such i eiifc , custody as may ;bo byln'v.' t ; allowed. . ■■••'■.". v ■ Mr. A. W. Blair again appeared for the I plaintiffs, and Mr. C. H. Treadwcll for j the. defendant.. _...". ; The Proceedings. i The Chief Justice: I suppose you begin, i Mr. Treadwell? I -Mr. Treadwell: lam rather at a loss. j It; is my. friend's motion. There is ■no ! jirnctice . ' ; ;,The Chief .Justice: It seems to me the function of the Court is at an end. 3fr. Blair said ho would endeavour to explain. He thought, as a matter of , fact, that any further application to the . Court was not necessary. The practice in England seemed to be that on tho issuo of. a writ the sheriff took .possession of the person—attached the person of the ; defendant—and simply held him, pending t,h,o order of tho Court. Under | Scction. 3 of the Imprisonment for Debt Limitation ■ Apt, the utmost the defendant could bo held for would bo twelve months. \Mr. Treadwell: That is not the practice, because the Court has to fix tho term. ;Mr. Blair: Well, the English section aiid our own are the sime, and also tho ■ practice mentioned in Daniell. Tho Chief Justice: I thought, myself, ' that that was-the practice. ; Mr. Blair: That is so. My friend must not assume that the defendant should , have another opportunity of being heard. .The Chief Justice: That was why I , asked Mr. Treadwell U proceed, because ', it seemed to me this Court's function was practically ended. Mr. Blair then quoted from Daniell'? • Chancery practice, and said the" proper course appeared to ho that j the defendant was attached, and ; would remain so for tho time being. ; He,, quoted further authority,.. from . Stout arid Sim! In the present case' there could only be detention,' not imprisonment with hard labour. It wns open for ; anyone, also, at any time, to move for a discharge. The Doctors 1 Affidavits. i He went on to say that an affidavit had been filed by Mr. Treadwell, which had reached his (Mr. Blair's) office only ' the previous afternoon, and n confirming ; affidavit had followed it still Mater. Ho • .had seen neither of them. until 8 o'clock that night. [It transpired further on in i the case that thc-so .wore the medical affidavits.r H:'s friend had.waited before i serving them until within a few' hours : of the sitting of tho Court. The , question contained in the affidavits was • one which, the Court should consider only upon an application 'coming before. ■ it for discharge. His (plaintiff , ?) side would theu have th-jir opportunity to bo heard, and call their evidence. He would submit, therefore, that the Court in this matter had no option, but simply to leare ' the attachment as it was and allow the '.' sheriff to act upon it. Mr, Troadwell on Another Point. Mr. Treadwell characterised the- cusS us the most extraordinary he had ever heard : of. This sitting was an appointment <;xDressly asked for by Mr. Blair in order that this matter might'he gone into. Tho Chief Justice: I announced to you At tho time that I did not know thero was anything to be gone into. I do not, 1 ?ven now, see what evidence there is. Ttiat ■ is why I asked you at tho commencement if you had any motion. Mr. Treadwelli If there is any irregularity your Honours will probably take it in tho form of ;< inolion from me, under the Act of last year, which confers jurisdiction to deal with the matter. Mr. Justice Chapman: After arrest? ■ Mr. Treadwell: The defendant is hero in custody, J as-rnme 1 can refer to tho affidavits filed in the action.

Mr. Justice Chapman: They may rejuire to be answered. The Chief Justice: But the other side might have the. right of reply. Air. Trcadwcll said ho was referring to the affidavits relating to the facts of the Daw. This ivas a proceeding upon n statement as to certain charges found against the defendant. For all the Court fcnov,- thi'i-e might be no money owing. The Chk'f Justice: But ought not that point to have been raised before? Mr. Tread well: I could not do so on tho motion before your Honours as to the writ. Tho writ was issued on the assumption that the defendant was in contempt for not paying a certain sum of money into Court."

The Chief Justice: You don't suggest that, we should go into what is owing noiv? He continued that the Court of Appeal had decided that the writ was to

issue. That being so thi-y could not. go into Hie merits of that matter now. That question was concluded, mul the only point to raise was that since that tinier was niailo the money hail been paid; or else the other, point which they proposed to raise in the affidavit which must -hi! mailo on a inolion for discharge. They could file a motion for discharge, but that' was nil they could do. Counsel Forewarned. Mr. Trsatlwell: Will your Ilonours take the motion as filed? 1 think you. might under the circumstance?, 't'lierc has apparently been a misunderstanding of the position. Tho Chief Justice: That may be. But you recollect that when you railed en me, 1 pointed out to you that 1 did not see that there was anything to be done.

■Mr. Treadwell: When the case was before the Court of Appeal, his Honour Mr. Justice Cooper said that on this application tho defendant would be heard. Proceeding. Mr. Treadwell quoted the remarks of the Master ot the Rolls in tho Chancery case of Marris v. Ingram, in which tho learned Judge, referring to a then recent legislative amendment giving a Judge a discretion in regard to tho committal of a person under a writ of attachment, stated that he had wished for such a. power on a former occasion v.jicn a defendant, who was practically dying, and was not morally culpable, was before him on n writ of attachment in proceedings relating to trust moneys. The Chief Justice: You raised all such questions on the issue of the writ. Mr. Treadwell: No. Merely tho legal questions. Tho..Chief Justice: There was nothing to prevent you raising the points you now raiso on the affidavits. What you have quoted is not an authority for this matter. The Nodine Case Referred To. Mr. Treadwell,expres=ed surprise at the vit-n- taken by the Chief Justice. The Chief Justics: I am speaking for .myself. I have not consulted my brother Chapman. Have you ai.y authority to show that you can now raise fresh points? Mr. Treadwell: It was done in the Nodine case The Chief Justice: After arrest? Mr. Treadwell: I understand bo. The Chief Justice: It may have been. I had nothing to do with that.. Mr. Blair: That was not-a case under the Imprisonment for Debt Limitation Act. ' [ Mr. Treadwell- said that if- it would get over the difficulty, ho would file a formal motion. The Chief Justice: What do you say, Mr. Blair? Mr. Blair Objects. Mr. Blair: My friend has only himself ■to blame— Mr. Treadwell: I object. The Chief Justice (to Mr. Blair): That is not the point. Do you object? Mr. Blair: Yes, I do. No one regrets more Hiau I do the present pWtion of uffairs, but Mr. Treadwell has nothing to complain of. He has had ten days that ho should not have had, and now the moment the writ is taken out ho takes this step. I could have issued tho writ without consulting him, and the defendant would have been taken into cus'ody. and there he would have remained". I assumed, wrongly, that he would have another opportunity to be heard,'and we now find that he has not the opportunity to be heard that we thought ho had. There is nothing to complain of in that. The- Chief Justice: Mr. Treadwoll thought 'that as you had given notico of an appointment here, he would have a right to say something. Mr. Blair: If he had brought that suggestion (of the affidavits) three days ago, instead of 1G hours ago, it might have been different. Thero are two affidavits by two doctors, and the only way for me to answer them is to get a number of examinations of the defendant by other doctors; The Chief Justice: There are two questions to be considered: Whether this is an answer to the writ Mr. Blair: Yes, and whether other doctors are of the samo opinion. Power to Adjourn Denied. The Chief Justice: I suppose Mr. Treadwell may be prepared to show that it is. au answer to the writ. ; Mr. Blair: 1 submit that it is not ah answer, but, in any case, it is impossible for me now to find medical men to examine the defendant and to get an opportunity to bo sufficiently, instructed to prepare affidavits, and . get them filed, ami possibly give my friend an opportunity to go further into tho matter. The Court has no power to adjourn this matter. It is not a matter of bail. The writ has gone. The Chief Justice: I think the best thing to do is to adjourn until 12 o'clock. Mr. Troadwell in the meantime can file a motion for discharge, and you will then be able.to argue tho point as to whether we have power to entertain the motion on that ground. If we have, then you will have to get an adjournment in order to have your evidence completed. Mr. Blair: There is another difficulty. I quite agree to that course, but if the defendant gets out of custody— The Chief Justice: He will have to remain in custody. If he got out, the whole thing would be discharged. Hi , . Treadwell: The defendant attended here pursuant to an order-— The Chief Justice: You f imply came to me and asked for an appointment. I did not go into tho matter at all, but the thing struck me as not in accordance with the rules. Tt struck me that you had no status, and .1 suggested that to you. However, let us see what motion you will file. Mr. Treadwell remarked that another judge, besides Mr. Justice Cooper, had said that the defendant would have an opportunity of being heard. Tho Chief .Justice: I don't say they were wroiig. I only want authority. Mr. Treadwell: Those opinions were expressed by their Honours in the Court of Appeal. The Court Adjourns, The Chief Justice: I am speaking only from my past knowledge of what the practice used to be in the olden time. 1 have not examined any books or anythin" ' Tho Court will be. adjourned until VI o'clock. You can' file your motion Mr. Macdonald will remain m the custody of the sheriff. Then you can argue whether the Court has power to do what you suggest. I elont say it has U °Mr Treadwcll: There are quite a number of matters that the Court ought to take into consideration. The Chief Justice: That would be a reheating of what the Court of Appeal has decided. It doesn't seem to me that we have jurisdiction. It is not now a question of merits. It is a question of juns-dirtioii-of legal right. The Court adjourned at 10.50 a.m.

THE MEDICAL AFFIDAVITS,

"OUTLOOK VERY GRAVE."

The two affidavits filed by Mr. Treadwell, as mentioned above, had been, sworn by Dr. Jlislop and the Hon. Dr. Collins, M.L.C. Walter John Uenry Hislop, M.8., M.S., F R C S., stated in his affidavit that ho had personally attended the defendant at intervals for several years, and particularly with reference to his state ot hcaltli during the last three years. During this latter period the defendant had shown mental and physical symptoms of a serious character, us follow.— "(I) Loss and unreliability of memory. "(2) Apathy; and loss of interest in his ordinary affairs. "(3) Intermittent periods of slurring and indistinctness of speech. "(1) A condition of continual drowsiness, which causes him to fall asleep in circumstances where a person in ordinary health would have every inducement to remain "(5) During the last session of Parliament, I was informed and believe that defendant,- while conversing with another member of the Legislature, suddenly became flushed in tho faco and then fell back in his chair, and remained unconscious for a short period. This attack I belicvo to havo been a slight apoplectic stroke, or possibly a threatened attack of uraemia. "(0) Repeated attacks of profuso noscblecdinE. * One such attack in which I saw him had been preceded by prouounced (lushing of the face, drowsiness, and intense headache. "(7) A physical examination shows an abnormally and persistently high arterial blood-pressure, some hypertrophy of I He heart, with alternation? in the heart sounds due to persistent high blood-pres-burei some degree, of thickening and tor-

tuosity of the arteries and a marked dilatation of the capillary vessels of tho skin, especially on tilt , fan , . , "These symptoms indicate that tho defendant is suffering from that form of thrjiiic Wright's d>-easo known as chronic interstitial nephritis. This disease usually develops insidiously and with few or no symptoms over many years, and by Iho time such symptoms appear, the outlook as to health, or even as to life, is very grave, as the patient i> subject to the risk of either of two serious complication?, namely, cerebral apoplexy or uraemic poisoning.

"If the defendant is committed tn prison, a largo amount of worry and mental distress will undoubtedly be entailed on him. Worry and mental distress invariably have- a prejudicial effect on the disease, from which he is suffering, and it is practically certain that the .symptoms of menial failure will be aggravated, and the risk of an apoplectic seizure greatly increased " Dr. W. E. Collins, M.L.C., also stated in his affidavit that ho had formerly attended the .defendant, and was familiar with'.his-condition of health at the present time. He fully concurred in tho affidavit sworn by Br. Hislop. AFTER THE ADJOURNMENT. A MOTION FOR DISCHARGE. On the resumption of the Court at noon, Mr. Treadwcll spoke in support of tho following motion, which he had filed during the interval:~ "That tho Court inquire into the case and discharge tho defendant from custody on the grounds— "'(1) That imprisonment will bo gravely prejudicial to tho defendant's t.tate of health.' "'(-) That no benefit will accrue to the plaintiffs from the imprisonment.' " '(3) That tho real object of tho attachment proceedings is not to obtain payment of the amount shown to bo dun on the defendant's account.' "'IA) That in nil equity aud good conscience there are largo amounts due to the defendant which ho cannot legally claim at present, but which ought to bo taken into account in determining, whether ho should bo committed to prison or not.'"

Mr. Treadwell said it seemed there existed very little authority on the question their Honours had put to him in reference to illness, but it appeared to be a fact that ill-health was recognised by all judges as a- reason for a stay of proceedings. He quoted Oswald on a case for contempt of Court, in which tho direction was that the plaintiff .should throw himself ou the charity of the Court, show that his health would suffer from imprisonment, and that his business, and only means of providing for his wife and family, was being injured. . Mr. Justice Chapman: I think you will find that that case applies to contempt of Court, breaches of orders, aud cases of that kind.

Mr. Treadwell: I don't think so. Tho Chief Justice:-I can't find /any analogous cases to this. Can you? Mr. Trendwell: Yes, your Honour. I havo found two or three. Ho referred to Seaton on Decrees. He also quoted another case, but added they were very .hard to find. The case of Marris and Ingram was further quoted. The Chief Justice replied that he did not think these cases assist-d t":c argument. A Stay of Proceedings. Mr. Treadwell went on to say there was no doubt that the Judicature Act, Section 4, gave the Court completo powers of discretion. In view of any suggestion that the proceedings now were not in order, it was absolutely unsatisfactory to proceed without affidavits. It would bo more convenient, perhaps, to adjourn the stay of the operation of the writ until such tiinu as the affidavits wore filed. There would l:o no discharge, but only a stay. The defendant would enter into any recognisances, though he did not think 'Ihey would be required. He submitted that there could be a stay for ;■> limited 'liine on on undertaking—he would give, the undertaking himself that the writ would stand, a complete undertaking —and the matter could bo adjourned until a convenient day,. He was not asking for a discharge, but only for a stay till (he affidavits could bo filed.

The- Chief Justice: They should have been filed before, so that timo would have been given for the others to be put in.

Mr. Treadwcll: I understand. But as I said before, the position was plainly misunderstood.

The Chief Justice directed the attention of counsel to the form of the English law in regard to the execution of writs, and said it did not seem to differ from our law. "You issue a writ of attachment, the sheriff issues his warrant, aud that warrant authorises imprisonment. Therefore the matter ends there." His Honour understood that what counsel contended was mentioned by two of the Judges at tho Court of Appeal, but ho could not find any authority for it. Mr. Treadwell: Tho Court in tho circumstances will see that counsel is not to blame. The Chief Justice replied that Mr. Treadwell should havo filed the affidavits in time to give the other side an opportunity to reply. Counsel assumed, apparently, that what was stated at the. Court of Appeal was that there was a second order to ba issued. If that wero so, it. would have granted him the right to appeal again, and tho thing would never be ended. Mr. Treadwell's Appeal. Mr. Treadwcll: The matter is a very important one. and a. very serious one. nnd no doubt I shall have your Honours' consideration as far as I can get it; and I do ask that the application should bo acceded to. I understand there really can be no substantial objection to it. As far as the question of discharge entering into the "stay" is concerned, I give my undertaking that no question as to the validity of the writ shall subsequently be raised. The Purpose of the Arrest. Mr. Blair said the real object of the attachment was to obtain the money. What else was it for? Mr. Treadwcll: The real object is not to obtain the money from the defendant, because he has not got it. Mr. Blair: I don't agree to that at all. My friend suggests that we don't want the money, I .suppose? The Chief Justice, referring to Clauso i of Mr. Treadwell's motion, faid: Y'ou mean that these sinus arc claimed from the plaintiffs? Mr. Treadwcll: Yes. From the plaintiffs , . The Chief Justice: I-don't think that can be gone into. Tho only points that can be gono into are one and two. I don't think three and four can come in at all.

Mr. Treadwell: I should like to havo an opportunity of putting the facts before the Court.

Tho Chief Justice: You raised the fact: before.

Mr. Treadwell: No. I never dealt with three, and four.

The Chief Justice: Then you had ;m opportunity, and you did not do k>. Mr. Troiirlivcll s.airl he h.nd only had opportunities of dealing with questions that came up in the taking of Iho accounts and points of law. Tim Chief Justice replied that Mr. Trcadwcll had a right to bring out all Hie facts .when the matter was before Mi , . Justice Chapman and himself on the application for leave to attach, and again in the Court of Appeal. Mr. Trendwell: \\'r. did not consider that we had the right. "Two Bites at a Cherry." The Chief Justice: The Court, when dealing with a matter like this, cannot, to use a comniOD expression, "tako two bites at a cherry." Mr. Troadwell: Is that so? The Chief Justice: I think so. Tlio Court had to consider everything when it had before it the question whether the writ was to issue or not. You argued that question. It was tuico arsucd. Mr. Trcadwcll: But it doesn't appear to me .

The Chief Justice: I don't think you will find any authority. Mr. Justice. Chapman: I think, Mr. Trradwcll, that you are very unreasonable. You say that if the proceedings aro prolonged, you may be ;'.ble to show that moneys arc owing to your client. Is not that your contention? The attention of the Court has been concentrated on this case for some time now, and how is it that you have not until now made suggestion, by affidavit or otherwise, that there are large sums of money owing contra ? Mr. Treadwell: It has not appeared iu the proceedings.

Mr. Justice Chapman: Why not? Mr. Treadwell: Jt is largely a question of commission. The defendant is not entitled to commission while he is in default, but if he is entitled to more than this claim .

Mr. justice Chapman: That would be a litigious claim against the estate. Mr. Treadwell: J never knew of a case in which commission was refused to a trustee when he had administered an estate for the benefit of the trust.

estate for the benefit of the trust. Mr. Justice Chapman: it is purely u discretionary matter for the Court. Do you suggest that you can set it up against an order of the Court? Mr. Treadwell: No, your Honour; but against an application for committing the defendant for non-payment of mdiiey. The Chief Justice: That may be, but you should have brought it up when Iho plaintiffs applied for the, order to issue. Under the old law, a writ of attachment was issued without an urder of the Court. Then came the English Act and our Act, which made tho issue as of right, but onlv by order of the Court. When the Court has to deal with tho application for the order, you are given notice and you appear. Anything you have to say against tho issue of the writ should be said then. "What You Want is a Re-hearing." Sir. Treadwell again referred to tho view taken the other day by two judges in the Court of Appeal, to the eliect that defendant eould be heard on the present occasion. The Chief Justice:-I can't help lh.it. I must take my own view. Can you show mo any authority, English or New Zealand? Mr. Treadwell: I respectfully ask (hat the application supported by tho affidavits which have been filed should bs granted, and that your Jlonour. should have-- — The Chief Justice: What you are asking for is a re-hearing. Mr. Treadwell: j\'o, I want to show that there arc circumstances that ought to excuse, committal in regard to this default. The Chief Justice said the question of health might be gone into, because health was a thing (hat varied, but.they could not go into Ihe merits of the question whether the writ should have been issued or not.

Mr. Treadwell: It seems to me, with all respect, thj'i the position is not as yo'jr Ilonour puts it.

Tho Chief Justice: You suggest that the Court has two discretions—one for tho ifsno of the writ and one for the execution of the writ after it has been issued.

Mr. Treadwell: The view I take is that there are certain circumstances in regard to tho administration of this estato which would make it unjust

The Chief Justice: You would go further back than the leave to issue the writ. You would say the order for payment ought not. to have been mado. Mr. Treadwell: No; I could not resist the order, because the amount was found due on the accounts, but there may bo other equities—and I assert that (hero are—which' I ask (ho Court to consider before enforcing this matter. Of course, if your Honours say I am not to go into this, I cannot help myself. Tho Chief Justice: Well, if you have any authority, we can consider ir. I have pointed out the law of England, under which you could not have come before the Court at all. Mr. Treadwell: What would your Honours say to tho suggestion that I should have a further opportunity of considerin? this ? _ Tho Chief Justice: We must hear Mr. Blair. Mr. Blair Against the Motion. Mr. Blair submitted that there had been no cass in which application for discharge, was granted solely on the ground of ill-health, where a writ of attachment had been issued in regard to a matter of what the Court considered dishonesty. He knew of no case in which a dishonest trustee, or, for that matter, a person still in contempt, had been discharged except the case of Scarlett v. Fletcher, cited by Mr Treadwell (Staton on Decrees, sixth edition, Vol. 1, p. 471). In that however, the discharge w;:s by order of the Home Secretary, apparently in the exercise of the Royal prerogative. The Chief Justice said that was apparently not a trustee case, like the present one. . Mr. Blair went on to say that tho case regarding 'Preston, also quoted by Mr. Treadwell, was not in. point, as. it was concerned only with the costs, the defendant haying purged his contempt. i>cforo the discharge was granted, but not paid the costs. As to Macdonald's alleged inability to satisfy the judgment, that existed at the lime of granting leave to attach. Royal Prerogative Mentioned. Counsel next quoted a summary of the effect of previous judgments from Halsbury's "Laws of England," Vol. VII, p. 323, and submitted that the- present ciiso was not one for an order of discharge, though perhaps it was n case in which the Royal prerogative could be exercised. Mr. Justice Chapman: Is that exercisable in cases of this kind? Mr. Blair: Possibly not. The Chief Justice: Can you find a case under the laws of England to show that ihtTft has been any discharge! on account of ill-health under "ca. sa." ("Capias ad ■satisfaciendum," an old form of writ under which a debtor was imprisoned until he paid his debt). Mr. Blair: I can find none, and Mr. Treadwell says he can find none. The Chief Justice: Thi; eld theory was that when you could not get the debt you held tho body. Mr. Blair said that if the application were granted, the Court would be taking away tho right to use the order. It would be equivalent lo saying, "We grant leave to issue the attachment, but you are not to be allowed to use it." Tho position would be an extraordinary one if tho defendant could now raise something that could have been raised at the time the attachment was applied for, and could say, "We desiro that tho leave lo" attach, which has been granted, should not 1« acted upon." li ill-health was the ground it should have been advanced when Ihe application for tho order was opposed. Question of 111-health Discussed. Mr. Justice Chapman: I don't see that that should ba p.!i, because ill-health might supervene at a later date. And in this case there is reference to the particular ailment being progressive. It may be that the ailment existed, and there yet be ground for it being raised at a later day, because of its •progressive character. Mr. Blair: Mr. Treadwoll would suggest that it was non-existent. .Mr. Justice Chapman; No; because the affidavit would show that il had existed for some time. He continued that when the case was before Iha Supreme Court prior to the appeal, the piatter might not have been in such si position that serious advice was taken, or a direct examination of the defendant made. The- solicitor, in that ca.:c, could not h<: held responsible. Mr. Blair: What T_sus?cst is that if the position comes within the grounds given in the order, that that would have bren the time (when the application for the order was opposed) to apply on the plea of ill-health. But I don't propose to* say any moi'O on that point. He continued Ihat Mr. Treadwell suggested the Court had power to postpone the'operation of the order. The order ran from yesterday (Friday). The position was that the writ, having been executed, it could not now be a question nf suspension, but of discharge; and the difficulty was that.' being a question of discharge, once the discharge was granted there the whole matter ended. Is a "Stay" a Discharge? Mr. Justice Chapman: That is so. The Chief Justice: You can "stay" an order, can you not? Mr. Treadwell: In any case, I give my nndertokinz, your Honours. The Chief Justice: But that is of no use. It cannot be accepted. Mr. Treadwell: But, still, it is gonerally taken. Tho Chief Justice: It only binds tho solicitor. Mr. Blair: In any case, there is a danger in that. The Chief Justice: What is the danger? Mr. Blair: It might be taken to be a •INi'hnrpn. The Chief Justice: Of whom? Mr. Blair: Of the defendant. Mr. Justice Chapman: If the Court decides that there is power to suspend tho operation of the writ The Chief Justice finternipling) asked Mr. Bhi' , " 'nt ■■<-- the meaning of "operation" of the ivrit.

M- Bbir! 'J'hp position of a person holiliii" a wiit is tliht In- may insist liiimi tin' sheriff executing tho writ. The Chief Justice-. What ia the incaniiiK, - of opera! ioi. , * Mr. Blair: The writ is a command tn (ho shn-iff to do s-oniotliiiij;. lie has alrendv iloiu- il. Tin , proposal was to di-chai<*e ilefpiiilanl out of the custody of Ihe sherill', and to rc-nrro.-L him. It, continued llr. Blair, I were in any doubt about it J. would bo very pleased to make a susgestion. But ymir Honours must see that it will lie futile In rcarrest cues there i> a dischur.ee. If Hie Court, he added, decided Ilial Hie qiio-iioji Iliat tin- hcaltli of the defendant was a matter which they would cnn>idor on an appheation for (ii.-cJiarse, then, he lodic it, the arrangement was that the question would be gone into when tliey had an opportunity to answer the aHidavits. He sulj-mitt-e'd that, sn far as the present motion whs concerned, the defendant, could not advance the measures he had. as entitlin:: him in a discharge. If this were so it would lie taking away from the plaintiffs what the Court had so recently given them. In Custody Till Tuesday. After a brief conference with Mr. Justice Chapnv.'.n, (ho Chief Justice slid (lie Court had not yet made up its mind whether a stay of the operation of (lie writ would be equivalent to a discharge under the Act. Of course, if it did so operate, (ho result would be that all proceedings would lie at an end. The Court thought there was a risk ol' »hut. and in order t« eansider the matter further, and not to put the defendant to greater trouble than was possible, and to s-sr , , also, (hat juslice was done, they propafpd that (ha defendant should remain in the custody of the sheriff until Tuesday morning at in o'clock, when the Court would say whether a stay of the operation of the

writ could bo "fjranlcd without it constituting a discharge. As to the s-reond matter, that of the health of the defendant, the Court had not made up its mind as to whether it was a ground or not. for discharge. But in order to enable the plaintiff*-, also, to adduce evidence as to the health of defendant, that portion of the proceedings would lie adjourned until Friday next at 2 o'clock, when the matter would bo discussed. The plaintiffs w.iuld have the right to have defendant examined by medical experts, and, further, if their counsel desired it, to crossexamine the medical men who made out the affidavit?. They could give notice under the rules of tho Court to have the examination made. The Court had thought it might be wise to appoint medical officers to make an examination, but they would leave that point open.

In reply to Mr. Blair, tho Chief Justice said that both parties should close their evidence by Friday.

Mr. Jiislicn Chapman: It must be understood that the defendant, whether he is in the custody of the sheriff or not after Tuesday, must still ,niako himself available to the medical men sent to him by the plaintilTs for examination. Mr. Treadwell pointed out that the results they feared from defendant's health might, be just as serious if he were temporarily in custody. The Chief Justice: Wo can't help that. Wo cannot run any risk. Wo are not to blams at all. The Court then adjourned. A'though the defendant is technically in the custody of the sheriff, it does not, follow (hat at present he is under any actual restraint. The Sheriff has a wide discretion in the matter.