PHYSICALLY UNFIT.

Taranaki Daily News, Volume LIII, Issue 301, 15 May 1911, Page 2

PHYSICALLY UNFIT.

TO BE "DETAINED" IN PRISON.. "THE SECRET CASE." By Telegraph.—Press Association. Wellington, Saturday. Before the Chief Justice (Sir Robert Stout) and Mr. Justice Chapman today the Hon. T. Kennedy Mac Donald was called on to show cause why a writ of attachment should not be enforced, ho not having paid the amount ordered by the court to be paid in the recent case, Rose and others v. Mac Donald. Mr. Blair appeared in support of the application, and Mr. Treadwell for the Hon. T. K. Mac Donald, who appeared in custody. Mr. Treadwell put in medical testimony from two doctors regarding Mr. Mac Donald's health, but Mr. Blair contended that the attachment must be made, and Mr. Mac Donald could later proceed on these grounds. Mr. Treadwell contended that the question of liability could be considered, but the Bench decided that the Appeal Court adjudged on that point, and all that Mr. Treadwell could do was to file the motion for discharge or stay of writ.

Sir Robert Stout thought that as Mr. Mac Donald was in custody Mr. Treadwell could not deal with the case in any other way. Mr. Treadwell then contended thai the medical testimony was a sufficient answer, but Mr. Blair urged that the court had no power to entertain a motion for discharge. The court then adjourned till 12 o'clock to allow Mr. Treadwell to file a motion for discharge, Mr. Mac Donald remaining in custody. When the case was resumed at 12 o'clock, Mr. Treadwell contended that Mac Donald might file an affidavit showing that he had done his best to satisfy the judgment and that his health would not permit his serving a period of detention, and that under section 4 of the Judicature Act the court had discretion to stay operation of the writ. Pending the filing of further affidavits re Mac Donald's health, Sir Robert Stout said he thought the section referred to before the writ issued, and the Appeal Court had already decided against Mac Donald.

Mr. Treadwell wished to deal with the general aspect of the case, but Sir Robert Stout told him he should have done so at the Appeal Court hearing, as they could not now question whether the writ should have been issued or not.

Mr. Blair said he knew of no case where a dishonest person so termed by the court had been discharged under such a writ on the ground of illhealth, except in one instance in. 1885, where the Home Secretary wrote to the court and an order of discharge was made without prejudice. That caseScarlett v. Fletcher—was not a trustee case.

Replying to Mr. Blair, Sir Robert Stout said perhaps there was power for the court to suspend operation ot the writ without such action being regarded as a discharge. Mr. Blair said if the court decided that it had no jurisdiction to deal with the application as regarded ill-health, then suspension of the operation of the writ was out of the question. Sir Robert Stout said there was doubt in the court's mind whether the court could grant a stay without prejudicing the case, and consequently defendant would have to stay in the Sheriff's custody until Tuesday morning at ten o'clock, when the question of a stay would be considered. The question ol discharge on the 'ground of ill-health would bo dealt with on Friday by the court, when the affidavits must be filed.