An Important Decision.

Gisborne Standard and Cook County Gazette, Volume I, Issue 38, 8 September 1887, Page 2

An Important Decision.

ORDER OF IMPBISONMEN £ FOR DEBT REFUSED.

Pbocbbdinos under the Imprisonment for Debt Abolition Act have, perhaps, caused more legal arguments in Resident Magistrate’s Courts than any other Statute. The very name of the Act itself is one that has been the subjeet-matter of long and weary argh* ments, in nearly every instance it being argued that the law was for the abolition of im--prisonment for debt. It has been distinctly laid down that no one can obtain an order for imprisonment against a debtor unless he is prepared to positively prove that he (the debtor) has had sufficient means since the day of the original judgment wherewith to pay the amount recovered, irrespective of a sufficient auni to maintain himself and family. This, it will be seen, places it almost beyond the power ot plaintiffs to ob’ tain an order of imprisonment against a debtor. The very form a plaintiff has to sign makes it imperative on him to prove what we have stated. But how often is this form signed without reference to its contents ! How often does a plaintiff go into Oourt without the necessary proof of ability to pay I In our Court here it is nearly an every day occurrence to see a plaintiff go into the wit-

ness box without providing himself with the neeessary information required to justify an order being granted. It is no use making the bare stateihent that the defendant seemed to live in luxury, although he did not work, Such a proof does not warrant UH order of Imprisonment. Abso, lute proof is necessary. This has been laid down by a number of Magistrates, and innumerable orders have been refused on the ground.of.insufficient preef of ability to satiety the judgment. In many oases orders have been granted .without absolute proof. In our local Chuttj this has frequently been done, and, no doubt,-wisely so;, but this does □ot obliterate the fact that positive proof bl ability to pay part or whole of the amount claimed is necessary under the Act. In a number of instances plaintiffs have had orders refused simply because they have not appeared in Court with proof sufficient to justify the granting of their application, as they have not considered it.necessary to gi' j anything beyond hearsay evidence. At the B.M. Court last Monday a point of considerable importance came before Mr Booth, Resi-

dent Magistrate. The point wtts whether, under the Act, a judgment debtor can be im prisoned a second time for the same debt if it is proved that he has had means since hie first committal. On behalf of the creditor it was argued that the Magistrate had power to commit for any term net exceeding three months, and if, a 8 in the case before the Court, the debtor had only been imprisoned for four days, and afterwards had the means he could again be imprisoned so long as the several terms did not exceed the three months allowed. A case was quoted under the English Statute which went to show that a debtor could not be imprisoned twice for the same debt, but it was contended that section six of the New Zealand Act went further, in allowing a judgment summons to be obtained from time to time, and giving the Magistrate power to make an order. Mr Booth said he had doubts on the matter, and wished to get the decision of the Supreme Court on the point. He refused to make any order, on the ground that the Act, while providing for execution against thejgoodsjafter imprisonment, did not say anything about a second fin. prisonment. Until lately no second judgment summons could be issued for the- same debt, and therefore the question of a second or subsequent imprisonment did not exist,.but the law now allows of a second judg ment summons being issued, and hence the application for a second order of imprison, ment. A popular opinion exists that " taking it out " wipes off a debt, and a decision either one way or the other from the Supreme Court will decide What is at present a most important point of law;