CIVIL SIDE.

Auckland Times, Volume 3, Issue 112, 4 March 1845, Page 3

CIVIL SIDE.

Thompson v Dacre. —This is ait action to recover .£45, which the plaintiff claims by viitue of an agreement alleged, ty him, to have been entered into between himself and Mr. D'Oyley, as Attorney and Agent of the defendant. The deftndaut pleads that the plain iff was discharged from custody under the provisions of the " Imprisonment ior Debt Ordinance," on the 10,b January last - tbat he on the same diy, and in pursuance o the provisions of that ordinance executed in favour of the detaining creditor, Robert Phelps, a power or attorney ior the recovery of certain debts enumera ed in a schedule then delivered in by the plaintiff that ihe sum now sougrit to be recovered, is one of the debts entered in the schedu e, that therefore the plaintiff ought not to be a.lowed to bing this action. \ he defendant by way of further plea denies the contract as ai eged by plaintiff. The plaintiff admits the truth of the sta: emeuts ot fact contained in the first plea. The plaintiff does not maintain that a Power of At'.omey given under the above circumstances is revocable, but he contends that his right of action is consistent with

the terms of the Power. Certainly jt is consistent with the words and meaning of the Powe?, as well as of the Order, that the action be brought in the name of the plaintiff, provided only that it be so brought by the authority-of Phelps, to whom the power was given.- But it is inconsistent with both that the plaintiff should be allowed, whilst the detaining creditor's claim is still unsatisfied (which is not denied to be the case here), to recover one of the enumerated debts without the creditor's authority. He cannot, after obtaining his liberty, withdraw part of the consideration which he gave for it. J\ow the only evidence of such authority which is offered to the court is an affidavit of Mr. Conry, that "the action is carried on by the deponent for the benefit of Robert Phelps" the detaining creditor. There is nothing beyond these very vague words. There is no averment of even a general authority from Robert Phelps, much less a oarticular authority to bring this action. It is true that the deponent acted as attorney for Robert Phelps in the action against J. H. Thomson, but the authority under Which he then acted was expressly confined to that action: and the action being terminated, the authority is gone. There is nothing to show any existing right in the deponent to represent Phelps. Moreover, in the commencement, of the afficavit the deponent describes himself as " attorney for the above named plaintiff'' (J. H . Thomson) : and the warrant to sue is signed by J. H. Thomson, and describes himself (without naming any other person) as plaintiff in the action.

But I do not think it necessary to inquire minutely into the construction of the 13th General Rule, as bearing upon this point.

There is a clear duty incumbent on this Court, to take care that judgment creditors be not deprived of the benefit which the Ordinance intends to give them, and. to that end, to permit no action like the present to be maintained, without full proof of, the author!.y or sanction of the judgment creditor. Nov, if this action 'oe held to be well brought, trie ueieuu'aiic may safely (if he shall be so disposed.) pay the sum claimed to the plaintiff J. H. 'Thomson. In such case, I see no security that Robt. Phelps will benefit by such payment ; whilst one debt will have disappeared altogether from the schedule. Under these circumstances 1 am of opinion that this action cannot be maintained. Judgment for Defendant..