ARRESTING A DEBTOR.

Te Aroha News, Volume II, Issue 80, 13 December 1884, Page 6

ARRESTING A DEBTOR.

A special sitting of the R.M. Court was held on Tuesday last before Mr H. G. Seth Smith, R.M. to hear a case which was brought under the clause of the Act which provides for the immediate determination of speedy summons cases. Esther Richmond sued Edward Frankfort for £5 for board and lodging, Mr W. J. Napier appearing for plaintiff, and Mr Cotter for detendant. Mr Napier explained that the case had beon brought under the 17th section of the Resident Magistrate's Court Act, and had led to the arrest of the defondant, on the ground that he was leaving the colony by the mail steamer with the object of fraudulently evading payment of the debt, upon which the plaintiff had taken action. Mr Cotter said that these proceedings were a surprise to him, and ho fancied that His Worship, in issuing the warrant upon which defendant had been held in custody since yesterday afternoon, had been rather misled. He submitted that the whole proceedings were irregular, first of all on the ground that there was no case before the Court at all. The section of the Act which had been referred to required a claim to be made, and a summons then to be issued, as the initial steps in all these proceedings. After this the case might be heard, but in this instance there was no case to hear. There was merely an affidas r it before the Court. To this affidavit he invited the particular attention of His Worship, for in the whole of his experience of the law he had never seen an affidavit couched in such terms. It set out with the peculiar statement :—": — " I verily believe that there is probate cause for believing that the said Edward Frankfort intends to leave the colony by the mail steamer City of Sydney in order to evade payment of the claim." The plaintiff did not swear this, but only averred that she verily believed there was probate cause for so believing. Then the affidavit went on further to say that from inquiries made among defendant's friends and acquaintances, she had ascertained that it was their general belief that the defendant intended to leavo the colony. He had heard a solicitor severely censured by Mr Justice Gillies for importing a similar reference to "a general belief" into an affidavit. In answer to His Worship, Mr Napier admitted that no claim had been entered by the plaintiff, nor any summons issued. His Worship thereupon remarked that he could not see how the matter could come within his cognisance. Mr Napier contended that the section of the Act which regulated these proceedings did not contemplate the initiation of such a case as this in the usual way as required by the Act of 1867. Mr Cotter, in reply, held that in all cases a plaint must first of all be issued before any hearing could be taken. His Worship said that the proper way of bringing a case into Court was by entering a plaint, after which the other proceedings might be taken. It seemed to him that that was the foundation of his jurisdiction. The present proceedings were certainly irregular. There was really nothing before him. Mr Cotter said that, under the circumstances, he would have to take other proceedings for the recovery of costs. — Auckland " Star."