R.M. COURT, CAMBRIDGE.

Waikato Times, Volume XXIX, Issue 2352, 6 August 1887, Page 2

R.M. COURT, CAMBRIDGE.

Fill day.— (Before Mr H. W. Xorthcroft

R.M. Collins v. Duncan Campbell.— Bremner v. same.—Judgment summons.—Mr Dyer for judgement creditors, Mr W r . M. Hay for judgment debtor. These were cases in which a judgment had been obtained by the judgment creditors against the judgment debtor and two' other persons for wages, and the judgment summons was now taken out against one of the judgment debtors only. Mr Hay took exception to the irregularity of the proceeding, and quoted the clause of The Abolition of Imprisonment tor Debt Act 1874, which gave jurisdiction to the Court. Ho said the words indicated that the summons was to be issued against “the person'’ liable under the judgment. Applying the Interpretation Act 1878 to this, it would be found, that the singular included the plural, and that therefore, by the word person, all the defendants would have to be included in the summons. He further said that Mr Campbell’s position was, that he had been in partnership with Green and Macky and that the firm incurred the debts now before the court. Campbell had separate creditors, and had assigned his separate estate to his separate creditors. There was available for the payment of claims such as these the assets properly belonging to the firm. He explained to the court the doctrine of the “ marshalling of assets,” and contended that until execution was returned “ nulla bona ” against the partnership estate no judgment summons could be issued. In support of this contention ho relied upon the “obiter dictum ” of Gillies, J., in the case of McLean v. Kent, where the learned Judge put it thus : “ It appears to me that the procedure involving imprisonment was not intended and should not be allowed to be used (where there is no indication of fraud) as a substitute for procedure by execution, but only as a supplement to it, in cases where the debtor fradulently so places his property as to be out of the reach of an execution.”—Mr Hay thought his learned friend would admit that no sufficient effort had been made to obtain payment by execution against the partnership estate, and that there was a partnership estate of much more than would satisfy the claims. He claimed that the summonses should be dismissed on the ground of irregularity.—Mr Dyer stated that he had in the application put in all the names of the judgment debtors, but had directed the cleric that he only wished the summons issued against one of them. He supported the contention that he had a right to do so, by a reference to the Act. He said that Judge Gillies was not favourable to the Imprisonment for Debt Act, and that his judgment should not be accepted without question. —A long argument then ensued about the relative position of the debtors and their separate and joint creditors, in which the doctrine of marshalling of assets was discussed at some length.—Mi Thomas Wells was then examined, but he did not give any evidence proving the ability of Campbell to pay the debts.—The Court deferred its decision until next court day, in order to consider the law points, but intimated that it had always held the opinion that a judgment summons should not issue until the execution process had been exhausted. It would be well for the persons who had the power, in the meantime, to get hold of what partnership estate there was.