THE DECISION

Dominion, Volume 4, Issue 1132, 20 May 1911, Page 6

THE DECISION

SIR ROBERT STOUT'S JUDCMENT. "COERCIVE TESTIMONY." Tho Chief Justice, delivering judgment, said: "In my opinion there aro only two questions to bo" considered on this motion, and I am also of opinion that they might have . been brought forward on tho motion for tho writ of attachment, and they should have been brought forward on that occasion, under our statutes. Tho Court has repeatedly considered -everything that could bo said against tho issue of tho writ, and what has been said to-day should have been said against tho issue of the writ. We are not going to consider what is raised by tho affidavit of tho defendant and the reply. Tho questions there attempted to he discussed havo been before tho Supremo Court and tho Court of Appeal. In regard to the power of tho Court to order tho discharge of a man who has been committed for contempt, if his health is in such a condition that imprisonment may injure him, I can find no express authority in tho book." After quoting several English authorities, his Honour continued: "My brother Chapman and myself, in view of dearth of authorities, decided to consult tho other Judges, and we havo had telegrams showing that they aro unanimously of tho opinion that wo havo power in this Court to order a discharge although a defendant has been committed by writ of. attachment for non-payment of money. Two of them point out that before that discretion is exercised wo ought to havo coercive testimony that imprisonment may cause death. Those two Judges aro Mr. Justice Edwards and Mr. Justice Dennisten. I agree with them. I think that before a discharge can bo granted wo must havo what is termed coercivo evidence that keeping him in gaol mav •canso. his-'doWh. No one can put it more strongly than 'may,' bceauso no 0110 can toll for certain. Wo havo to see whether tho affidavits say there is that great risk. I am content to take tne_ testimony of three doctors who mado affidavits.for tho plaintiffs, Drs. Ewart M'Gavin, and Herbert. It is clear that they find what Dr. Hislon says exists." . L

; After quoting tlio affidavits referred to, his' Honour said that Drs. Collins, t\ t} 'h Gllm ° r ' and Calllil all «Bwd that the man was suffering from a phase of chronic Bright's disease. They would prescribe complete rest and quiet, and the damnation of any mental w ! and excitement. That was the opinion °{ that it was perfectly pkb that tho doctors thought that if a, v mental worry and excitement wero iu? dorgono by tho defendant, i„ la™ ™ complete rest and quiet ho might have an apoplcctw seizure. In tl» aco of that evidence, both by doctors callnrl by tho plaintiffs and by the deLichnt ho did not think they could set i as do and say that the doctors were wrong° That would be putting upon judges o he Supremo Court a burden that ought not to be put upon them. He was of opinion that the order should bo made m the same form as the order which was made by Mr. Justice Kay ii acaso winch was not half so strong as this one, as there was not proof that the person was likely to die, but only that it would be detrimental to his health. Tho order was without prejudice to his contempt, and so ho remained in contempt. The plaintiff had liberty to apply to the Court on the question of contempt as ho might bo advised. This decision would not interfere with tho plaintiffs' right to adopt other means of obtaining the money, and, further, if they thought that tho -defendant had committed a crime, as suggested by counsel, the criminal law was open to them. This Court had nothing to do witli that. It had merely to carry out this jurisdiction which was granted to it. They were carrying out the law as laid clown in England. Moreover, it was perfectly plain that tho New Zealand statute was to be used with discretion, and it had ceased to be the right of a •plaintiff to hlivc au attachment enforced at his will. MR. JUSTICE CHAPMAN. "CRIMINAL PROCEEDINGS STILL AVAILABLE." Mr. Justico Chapman said ho agreed that they wero in a position to discharge the defendant if ho had made out his case. That case must bo. based on clear and strong evidence that'imprisonment might cause liis death. If that were clearly mado out, they ought to act upon tho evidence by which it was mado,out. The plaintiff bad pursued an exceptional remedy. It was very seldom, now-a-days, that one heard of a motion for attachment against a defaulting trustee. Tho plaintiffs had chosen that remedy with the risks which tlio law associated with it. So far as the defendant's own estate was concerned, bankruptcy was available to the plaintiffs, but possibly attachment n'.-iy have been considered a more valuable remedy, because it might induce his friends to come forward and assist him. The actual right of the creditors, however, was to insist that so far as defendant's own estate was concerned, it should be made available in the interests of creditors. If tho position was as put by Mr. Blair, criminal proceedings were still available either now or after bankruptcy had been instituted. There was, to his Honour's mind, a remarkable unanimity in tho evidence of the doctors. They sometimes heard of medical and other experts differing very widely, but in this caso they could' not be said to have contradicted each other in any sense. Ho had been struck by the affidavit of Dr. FylTo, who said in reference to tho defendant that ho did not" quite tako the same serious view as Dr. Hislop, but he did say that to commit defendant in his present state of health would moan a large amount of mental distress and worry, which would iu all probability

accentuate the disease' from which do< fondant suffers. It was certain that defendant was in a precarious condition of health, and would require careful attention. True this affidavit is fded by defendant, but looking at tlio evidence of tho medical gentlemen generally, they did not appear to go beyond what .th"y thought to bo tho real state of affa. , and there was an absonco of tho partisan spirit in the affidavits they had made. Tho defendant, said his Honour, was a man of advanced years, and at any rato had not got tho resilience of youth, and the body of evidence showed that he is suffering from-a specific disease. Tho evidence satisfied bis Honour that if tho Court refused to discharge- him, it would bo taking tho responsibility of doing so in the lace of tho great body of trustworthy medical evidence. It might bo that defendant's state of health would turn out to bo not as serious as indicated, and that m not refusing to grant the order the Court might bo depriving the plaintiffs of what they considered tho remedy open to persons in their position, but there wore other courses open to them. They could make tho defendant bankrupt, and have a search, ing inquiry into his affairs, and might go further As his Honour tho Chief Jusuco had pointed out, imprisonment tor debt had been abolished, or only reserved for exceptional circumstances. Ho thought they must look at tho legislation ot the past and of more recent years in what might bo termed "tho spirit of tho times." The Chief Justice: Tho order will be made m the form I had suggested. lou (addressing counsel) had better submit it to me. Mr. Treadwell: Defendant will bo discharged from custody without tho order' being drawn up ? The Chief Justice: Yes. "-

THE QUESTION OF COSTS-, • "WE ASK IT AS ARIGHT.".' Mr. Blair urged that-tho payment of tho costs ehould bo mado a,condition precedent to defendant's being discharged from custody. Tho present-cus-tody, ho said, was not tho ordinary custody. The Chief Justice: That does not matter at all. _ Mr. Blair: In this case we ask it as a right. Mr., Justice Chapman; Supposing the money was not met, that might mean mdofnsto detention Mr. Blair: I ash that tho Court makesonic order. Unless tho Court did, plaintiffs would never got anything. Mr. Justice Chapman: Aro you asking that ho shall bo detained until ha finds this money? Mr. Blair: Yes, or that an undertaking for payment bo given. Mr. Justice Chapman: That is really asking us to ncgativb all we have said about tho order bejng discharged. Mr. Blair urged that tho position was ouo of hardship to tho plaintiffs. The defendant, ho contended, could pay. Counsel added that defendant 6kould be made to pay all the medical expenses, which were for him alono.

Tho Chief Justice: You aro entitled to put that in your order.