SUPREME COURT.—MONDAY.

Waikato Times, Volume X, Issue 739, 13 March 1877, Page 6 (Supplement)

SUPREME COURT.— MONDAY.

IN CHAMBERS.

* (Before E. S. Willcocks, Esq., Registrar). Bo Henderson and Maofarlane , 'v- Kandley Bathurst Sterndale. Mr Whitakor for the applicant, Mr Hoskcth for defendant. This ,was an application by the defendant, H. B. ,s■*"" •vdalc, to ros.c'W ; an order which liad H&t«. .. \by tj^. «*sti f ar to hold the defendant % iail, aftv^flo be imprisoned for three montlis} unless he should find security to the amount of £2,000. The Attorney-General referred to section 15 of the Abolition of Imprisonment for Debt Act, 1874, and stated that it was a transcript of section six of the English Debtors Act of 1869. He contended that section 15 of the former Act repealed all former laws relating to imprisonment on mean process, and substituted another provision m lieu of those which had been repealed. The former laws and rules relating to arrest must therefore be taken to have been abrogated by the ' ' words m section 15 that " after the commencement of this Act a person shall not be arrested upon mean process m any action m the Supreme Court." Thefnew provision ' m section 15 requires the party applying for • the right to arrest to prove four things :— ■ Ist. The defendant must have been liable to arrest before the Act came into operation. 2nd. The plaintiff must shew that lie has a '• good cause of action. 3rd. That the plaintiff has probable cause for believing that the defendant is about to quit the country ; and 4th. That the defendant's absence from New Zealand will prejudice the plaintiff m prose- . cuting his action. With regard to the first point, the learned Attorney-General con- . tended that the action was not one m which the defendant could have been arrested '. prior to the Act of 1874. Rule 458 of the Court applied only to. actions for money, whereas this was not an action for money /but an acti on for an acconnt by one partner again st another. Rule 459, he contended, is 1 abolished by section 15 of the Act of 1874. Before the Act of 1874 came into operation there was no process by which a defendant could be arrested m a suit like the present < one, which is an action for an account by one partner against another. On the second . point, the plaintiff must prove that he has a good cause of action, and must be able to -, sue for such cause of action. But a partner could not legally sue his co-partner (Lindley on Partnership, p. 84). The expression ." cause of action " m the section must be . taken for a claim for a specific pecuniary . sum. ' It does not apply to claims m equity . (Day's Common Law Procedure, p. 46, and Yorkshire Engine Company, Weekly Reporter, vol. 21, p. 15). The affidavit should allege the ground on which -the plaintiff relies m order to shew that he would be prejudiced by the defendant's absence. A plaintiff is only entitled to have a defendant detained, m order that the 1 defendant may give evidence, or otherwise assist, the plaintiff m obtaining his final :■■ judgment* but after the final judgment is .'obtained, the defendant is entitled, to be discharged. Upon these grounds he asked the Registrar to rescind the order. Mr Hesketh, m reply, admitted that section 15 was a transcript of section 6 of the Euglish Debtors' Act, but he contended . that section six only applies to the Courts' . • <tf common law at Westminster, and not to proceedings m equity, and that therefore ; m construing the section as applicable to the English Courts, the expression " cause of action " would only include money demands, and claims m actions of tort. By section 15, hoAvevcr, of the Act of 1874, the ■- : expression cause of action is .applied to " any action m the Supreme Court, and 'as . the Supreme Court has jurisdiction over all actions, whether of a legal dr. an equitable 'chafactcrj the expression " causeof action " must be held to apply Clearly, to one 'as £awell as the other. Rule 458, although it -refers to actions for the recovery of money, goes on to say " whether the cause of action • be Avithin Common Law or Chancery jurisdiction of the Court." Rule 459 clearly gives jurisdiction to the Court in ' a suit which is cognizable m England .by the Court of Chancery., Tjhe learned Counsel further argued that section fifteen has not the effect of repealing rules 458 and 459, but they can be looked to for the purpose. of deciding the effect of the first part of section 15 as to whether the defendant was liable to arrest before the Act of 1874 came into operation. Before fchat Act came into operation the judges of the Supreme Court had power to arrest on mean v process ; and the, rules m question vest him with power to exercise that right ;in equitable as well as m legal actions. This was an equitable action, m winch the plaintiff sought to have the partnership accpunts taken, and the defendant Afas thorefore liable to arrest before the Act; of, 1874 came into operation. The expression, "cause of action" m the 15th section must have the same meaning as applicable, to " any action "m the Supreme Court, and must have the same meaning as that pointed -to m rule 458. As to cause of action, he contended that a partner has a full right to bring an action against his copartner, and claim that the partnership accounts shall be taken. In this case the declaration alleged that the paatnersiiip was dissolved, and the plaintiffs claimed ian account, and SAvear that they believe £IQOO will be found to be due to them on the taking of that account. That brought the case clearly Avithin rule 459. As to the ground that the defendant's absence Ayill prejudice the plaintiff," the learned ' counsel referred to Hume v. Druyff 29 L. J. P. 64, Avherc, : from the report of the case, the defendant was arrested upon an, affidaA'it which stated ." that the absence of the defendant Svould materially prejudice the v plaintiff m the prosecution of his action." - To set out all that the defendant Avoiild ;bc required to depose to would be at variance with the established practice. The plaintiffs had the right to d,efcain the defendant tthtil the final judgment, or until he should give . security for his appearance for the purpose of giving evidence or making a discovery, and on the final judgment being entered the defendant Avas entitled, as a matter of course, to his discharge. The Attorney-General replied at some length. t The Registrar; E. S. Wilcocks, Esq., held that section 15 must be taken to haA r e abolished all artjpsts on mean process; that the present action does not fall Avithin the language of section 15 ; that according to " the authorities n Lindley, one partner lias ' no poAver to brn g such [action against his co-partner : ttiit there Avas no cause of action sheAvn wihiii the meaning of section *■' i.5 ; and that th plaintiffs affidavit Avas m Sient, inasnuch as it does not allege •my baancc has been struck \ upoi between the partners. vgummts used, and the authori'he learned Attorney- General, felt called upon to say that granted the order for Jand that he nW jfe guineas costs. /fie Registrar Would '■--„■ ; ~~1 that*Jie^4ig.fl no b wording of tK#~