JUDGMENT SUMMONSES.

Otago Witness, Issue 2894, 25 August 1909, Page 26

JUDGMENT SUMMONSES.

THE VALIDITY OF AFFIDAVITS. In the Magistrate's " Court several times rscently the, Stipendiary Magistrate, Mr H. Y. - Widdowson, has commented upon plaintiffs suing for orders upon judgment summons, the point being that plaintiffs in proceeding for orders have signed affidavits affirming their belief- that since the securing of the judgment against the defendant the latter had, or has, got the means I wherewith to pay the outstanding debt after providing for the sustenance of the family, whereas the evidence given by the defendant in the court has been that he was not, and bad pot been, in a position to allow of any money being paid. The frequency of the occasions on which the ; evidence given in court failed to support ; the affidavit made by plaintiff caused the remarks of the magistrate to be made, as ! he held that carelessness was apparent on plaintiffs' part in 'swearing the affidavit without having made due inquiry into the financial position of the" debtor. Such a case came on in the. court yesterday morning -when a plaintiff -handed- in the usual affidavit that defendant bad had the money with whiph to satisfy, his debt,, and.defendant, when, placed in. the box, deposed, that he had never been, since .the giving of the judgment, in a position to pay the amount ' owing. Mr Widdowson cautoned* the plaintiff, saying that- tliis affidavit should not be sig-ned in a rash manner without a full b&lief that th& money could have been paid. Plaintiff protected that such had been his opinion, but the magistrate would grant no order. j A few minutes later an affidavit was I handed in by Mr Statham, which had the j particular clause referred to struck out, and thus merely affirmed that defendant J had failed to pay the debt, and plaintiff ! therefore prayed for an order. He sugj gested that it was permissible to so alter the affidavit, and that no obligation rested •on the plaintiff to prove the means of the j. defendant. His Worship said he would be glad to hear him upon the point and the case was allowed to stand down. . On the caae being called again, Mr Statham- asked for an adjournment to permit of his looking into the matter, and the magistrate agreed to this after a cursory glance at the " Additional Rules for the Magistrate's Court."- Quoting from this, he said that the application for an order must be accompanied by an affidavit in the form

' set forth in the rules passed in 1904, whereas the application handed in by MrTStetham was- not even a. substantial compliance with the form indicated. It is explained that' the procedure nowobtaining in the magistrate's court in connection with judgment summonses is according to the regulations contained in the Consolidated Statutes of. 1908 of the acts of 187* and 1903. In 1900 great alterations were made in the law regulating imprisonment for d*bt, and in 1903 further alterations were made and rules drawn up, which were published in the New Zealand Saafette of April 27, 1903. These ruks and the forma in connection therewith' obtained till the following year, when, in the New Zealand Gazette of May 12, 1904, tha • Governor-in-Coimcil proclaimed the repeal of the forms prescribed and re-enacted the new forms in the sohodule annexed thereto. These new rules contain this clause : " I believe that the defendant, after providing lor the reasonable maintenance of himself and his family has, sine© the date of the judgj ment had sufficient nioney to pay the debt.' As the magistrate has indicated plaintiffs appear, in signing this affidavit, to cx> so without realising the responsibility devolving .upon them by doing so, to prove their assertion in the court. The point raised by Mr Statham as to whether an affidavit with this clause struck out would be- valid or not will be settled next Thursday, to which date his case was adjourned.