BISHOP V. ACKROYD.

Temuka Leader, Issue 2036, 22 April 1890, Page 3

BISHOP V. ACKROYD.

In the above case His Honor Judge Ward delivered judgment last Saturday. His Honor said that the jury found a verdict in favor ef the plaintiff for £4O damages, the present motion being to enter a nonsuit, or a judgment for the defendant. The following facts were proved: The plaintiff, Bishop, after receivirg the proceeds of the Bale by auction loujd himself with £3l o*sh and £39 debtß. Ho came to Temuka and offered 10s in the £ to Messrs Ackroyd, Miles, Brown, and B yth, and on his | refusing to pay 15s in the £ Mr Brown remarked to Mr Birth that they would i "call a special court.' 1 The Resident j Magis'rate had fixed a silting of bis court Nt Temuka on every Monday at 10 a.m., | but he only attends every alternate Modday, and this 19tn August was "the I Justices'of the Peace day." Assuming 'that the Resident Magistrate had the power of appointing a sitting of his court " on any day mo. t convenient to himself " It was rather straining his authority if he : appointed sittings on days on which he had no intention of attending, simply with a view of empowering two Justices of the Peace to sit in hia stead under clause 1 6 of tho above-mentioned Act. His Honor went on to say that even then the Justices could only sit at a fixed hour or an adjournment thereof, and that he did not concur in the contention that the absence of the Resident Magistrate transferred his power to any two Justices. He quoted the case decided by Judge Denniston, in which it was laid down that the summons should show on its face any unusual time for service. As this was not done Bishop was entitled to treat the summons as a nullity. He went on to review the case, stating how Bishop locked himself io a room and refused the summon* ; how the bailiff put the summons under the door, and bow Messrs Clark and Hayhurst gave judgment by default in all cases, and how judgment summonses were taken out. His Honor went on to say that the present defendant, Mr Ackroyd, went over to the publichouse, and induced Bishop to go to his shop and there pay £6 off his debt., which appears to hive been only £ll 16s Bd, without costs. Immediately after this payment was made the bailiff appeared with the judgment Buramonse«, and and Bishop went to the court with him. He was sworn, but refused io answer the questions put to him, and after other evidence the Justices directed him to be imprisoned for six weeks on the application of Mr Ackroyd—who omitted to mention the payment of £6 just received by him—and for shorter terms on account of his three other creditors, to whom less sums were owing than to Ackroyd previous to his above-mentioned payment of £6. Two orders of commitment—both in respect of Ackroyd's debt, and both irregular—were served on Bishop; a warrant reciting one of these was handed to the bailiff, and Bishop was taken to prison and kept there for Bix weeks, for which term in durance the jury awarded him £4O damage*. The order relied on by defendant in hie own plen is clearly invalid, on the grouuds given by Mr Justice Williams in the cubo Reg v. Phillips and Galder ; and aB this is the order recited in tbs warrant 1 doubt if be can call in the other to help hin. Even if he could do so there is no doubt that this second order would also be set aside for irregularity. The leal sum due is not stated, the order is not in the prescribed form, and the important provisoes with respect to the release of the debtor—contiinod in the prescribed form —are omitted altogether. The two chief contentions on behalf of the defendant seem to be—first, that the imprisonment of the debtor was a purely judicial act of court, for which defendant was in no way responsible ; and, secondly, that even assuming that errors did exist in the proceedings they were irregularities, which gave plaintiff no light of action until after the process bad been set aside. As to the first contention, it seeme to me that process under the Imprisonment for Debt Abolition Act is merely a qualified execution ; and that the form of application for a warrant under nn order of commitment, given in the R.M. Rules of 28th February, 1881, clearly shows this to be the case. As to the second contention, I have grave doubts whether the whole action of the Justices was not without jurisdiction, on the grounds first stated. But even if they had jurisdiction to sit, then from the cases of Qrigg v. Krull and Mcßeth v. Buchanan it ia clear that the summons being a nullity they had no defendant before them, and their judgment, judgment summons, and order of commitment must all fall together. The motion will be dismissed; the plaintiff holds his verdict with costs."

Mr Hay asked for stay of execution, pending appeal, and this was granted on condition that the amount of the verdict and coats is paid into court, or security given for their payment.