SUPREME COURT—IN BANCO.

New Zealand Times, Volume XXXII, Issue 5025, 2 May 1877, Page 2

SUPREME COURT—IN BANCO.

Tuesday, Mat 1. (Before His Honor the Chief Justice.) ' RANQITIKEI HIGHWAY BOARD V. GEORGE MAUNDERS. Mr. Bell moved the Court for a rule nisi calling upon George Maunders to show cause why he should not he ordered to pay to the Rangitikei Highway Board certain moneys awarded by arbitrators between the parties in respect to certain disputes. Affidavits were read setting forth that certain sums, in all £233 10s. 2d., had been awarded, and that Maunders had refused to pay the award. ; The rule nisi was granted. PITT V. CARVER.

Rule nisi calling upon James Coutts Crawford, Esq., Resident Magistrate, and Robert William Xnd Carver, to show cause why the said i James Coutts Crawford should not issue a warrant of committal against the said Robert William Ind Carver. ,

Mr. Stafford appeared on behalf of Carver to show cause; Dr. Buller in support of. the rule. An affidavit filed set forth that Carver had been adjudged the putative father of Martha Pitt’s illegitimate child, and was upon Ist August last ordered by two of her Majesty's justices of the peace to pay 7s. 6d. per week for.the support of the child, together with all costs of the application to the Court. Carver having allowed the sum directed to be paid to be in arrear, or unpaid for the space of one calendar month or upwards, application was made under section 17 of the Destitute Persons Ordinance, 10 Viet. No. 9, for a warrant to cause the said Carver to be brought before; two justices of the peace in order that the amount of arrears then due should he determined by the said justices and recovered in a summary way. -Carver was brought before the two 'justices'; and Mr. Crawford, the Resident Magistrate, made a minute of the amount due, viz., £ls 14s. 3d. A distress warrant was applied for and issued, but it was found defendant had no goods and chattels upon which levy could. be made. On the 16th September application was made to Mr. Crawford for a warrant of. committal for Carver, which was refused, “on the ground that the Ordinance being silent as to imprisonment, there was no jurisdiotien to grant such warrant.” . Mr. Stafford, in showing cause, quoted the 17th section of the Destitute Persons Ordinance as follows “In the case of the sum directed to be paid by an order made in pursuance of the provisions of the Ordinance being in arrear or unpaid for the space of one calendar month or upwards, it shall be lawful for any two justices of the peace, ,'on the application of ; the person ■ entitled to receive the sum, by warrant to cause any person making such default to be brought before any two justices, and if the person shall fail to make payment of such arrears, the amount then due shall be determined, and shall be recovered in a summary way.” Mr. Stafford submitted that as the Act was silent the justices had no power to commit, and that under the Destitute Persons Ordinance the only remedy was a distress warrant. .Further, in this case no written complaint had been made against Carver, under the clause cited, the amount had; been “ determined," and was liable to he recovered in a summary way—that was to say, a formal written complaint should have been made that ho had not paid the amount, and the ordinary summary proceedings should have followed. In this cose no complaint had been laid, therefore no distress warrant should have been issued, and the magistrate was right in having refused to commit. - --

Dr Buller said the ground of refusal alleged in the affidavit was want of jurisdiction, but the other side bad not raised that point at all. Had they done so, he 1 should hare cited Queen v. Pilkington, 2 E. and 8., 553;; and a number of other cases.

Mr. Stafford did not contest that point at all. His contention was as to whether the proper proceedings had been taken. His, Honor : You say the refusal of the magistrate to commit was quite proper, but the reasons ha gave for it were wrong ? Mr. Stafford : Yes.

Dr. Buller contended that the proper course had been taken, and pointed out that it was the evident intention of the Legislature that no second complaint should be made. A complaint was to be made in the first

instance, and when an order for the payment of a certain sum per week was made, a distress warrant, followed if necessary by a warrant against the body, could be issued in case of non-compliance with the order. True the Act was silent about imprisonment in case of default, but the Ordinance was controlled by the provisions of the Justices of the Peace Act, 1866 (sections 25, 36, 37, and 45). He contended that the Besident Magistrate havings whether rightly or wrongly, issued the distress warrant, complainant was entitled to proceed to the next step by taking the body in execution. A long argument ensued, during the course of which His Honor said the only matter in doubt appeared to him to be whether a written complaint was not necessary after the justices had computed the sum due. As to whether the justices could and must issue a warrant of committal there was in his mind little doubt, but he refrained from giving a definite decision then. He should take time to consider the whole question. Dr. Buffer remarked that the point as to whether the justices could and must issue a warrant of committal was the great question after all If improper proceedings had been taken in the Court that was a matter which could be easily rectified. Mr. Stafford had said there was something in the Abolition of Imprisonment for Debt Act, but he could not see how his friend could get over the clause upon which he (Dr. Buffer) relied—the clause of exceptions. The learned counsel mentioned the following as illustrating the law on various phases of the case :— Beg. v. Codd, 8 li.J., Mag. cas. 44 ; Keg. v. Boteler, 33 L. J. Mag. cas. 101; Eollet v. Koetzow, 29 L.J., Mag. cas, 128 ; and Smith v, Boche, 28- D.J., C.P. 237. Mr. Stafford said he was not prepared to argue the last-mentioned point just then.- If the necessary proceedings had not been taken, the rule must fall, and afterwards would arise the question as to a magistrate’s power and discretion in respect to warrants of committal. The Court reserved its judgment.