IN BANCO.

Dominion, Volume 2, Issue 331, 19 October 1908, Page 2

IN BANCO.

ALLEGED DISOBEDIENCE OF AN • INJUNCTION: MOTION FOR WRIT OF ATTACHMENT. The case between John Lockwood and Henry Inman (plaintiffs) v. Geo. David Jones (defendant) was partly heard before Mr. Justice Cooper on Saturday. This was a motion on behalf of plaintiffs for a writ of attachment against defendant on tho ground that defendant had allegedly disobeyed an injunction granted by Mr. Justice Cooper at Wanganui' on May ; 27, restraining defondant from carrying on the business of tailor' either on his own. account or in partnership with any other person, of as agent or manager or traveller for any other person within thirty miles of Wanganui Post Office. On behalf of plaintiffs, who were represented by Mr. Bunny., an affidavit had been filed, alleging that inquiries had elicited the fact that defendant had been canvassing for orders for a business, adjoining plaintiffs business, which he had transferred to his Defendant, upon whose behalf Mr. Fell appeared, filed an affidavit in reply, in which he stated that he had been engaged in the cutting out of six suits of clothes m connection with the business carried on by Ins wife for which ho received some small iemuneration, but beyond that lie had no interest in her business. n , His Honour intimated that it would bo necessary before he could make an order at- , taching 'defendant for the plaintiff to supply more direct evidence of solicitation for orders, and that although there was no doubt a technical breach had been committed by defendant in the cutting of tho clothes, yet that was not sufficient for him to send de- - fendant to prison. He directed that plaintiff should file an amended notice of motion settin" out the manner in which the injunction haf allegedly been disobeyed. Plaintiff was given leave to file additional affidavits; copies to be sorved on defendant. Tho amended notice of motion was also to be served on defendant for hearing on a date not less than : seven days from date of service. Defendant would be" given' liberty to file answering affidavits within the time limited by tho rules, or such other timo as the Court might think fit on tho application of defendant to allow. , ij|j e question of costs would be. reserved. SEARL v. M'ARTHUR AND DE LAVAL. i MOTION FOR'WRIT OF PROHIBITION. Further consideration was given to the 1 caso of Edward John Scarl, caterer, Wellington (plaintiff) v. Alexander .M'Arthur, 1 S.M., and Leo do Laval, cook, Wellington (defendants) by Mr. Justice Chapman on Saturday. Plaintiff was not represented by counsel, whilst Mr. Myers appeared on behalf of Dr. M'Arthur, S.M., and Mr. Toogood represented de Laval. The facts in this case were briefly as follow:—On September 3 de Laval obtained . judgment in the Magistrate's Court against Searl for £12 ss. for wages and costs. Eight days later n. judgment summons was taken out. After having examined S'earl as to his means, etc., Dr. M'Arthur, S.M., made an . order that lie bo committed to prison for , seven days unless he should pay the amount > duo on or before October 15. Searl moved > on 'Thursday for an order that- a writ of J prohibition do issue to Dr. M'Arthur, S.M., ' and de Laval restraining them from further ! proceeding on the judgment summons order. , Tho ground on which the application was based was that Dr. M'Arthur, S.M., had at

the hearing of the summons refused to heal evidence on a charge of fraud alleged there* in. Between.the giving of judgment and th« hearing of the summons Searl had, he said, obtained the pvidence, of two independent witnesses, whose evidence proved directly that ho was not guilty of fraud in connect tion with the- matter. He was, ho continued, anxious to have the question of fraud alleged in the summons tried in proper form. ' Further, lie was an undischarged bankrupt now out of employment and without means to pay the judgment debt. The order was, he had been- advised, made contrary to law and without jurisdiction "or justification. "When the matter came before tlio Court on Thursday a stay of proceedings was granted until Saturday, Searl being required to serve necessary documents on the defendants in the meantime. Mr. Toogood said that the statement of claim had only been served on his client,de Laval, on the previous "day and lie had not had time to prepare a statement of defence. He could not, however, really say anything beyond what Mr. Myers had stated on a previous occasion when the matter was before the Court: ' His Honour: If any further reason arises during the argument I shallgrant. another adjournment. ; ... Plaintiff remarked that .in -view of-' th» fact that he was only - served -with Dr ( M'Arthur's statement' of. defence, at !9.5ft o'clock that morning he didn't know how to proceed. ■ ' His Honour: You could not have expected it to bo filed sooner. l Plaintiff: No, but I don't know what effect the late service will have upon, the procedure. - - ■ His Honour: Putting • aside : immaterial grounds, your application is apparently . based on the magistrate's refusal ; 'to- hear additional evidence which'"you wished to.tender at the hearing of the summons; Now J am not going to hear, the case over again e In his statement of-defence; the inagistrato says that the evidence which -. you; .desired to put in impeached the original judgment, - and was, therefore, evidence which he' could not hear. • . Plaintiff: But these were additional-;wit-nesses. . .. His Honour: That. does not matter—tkp question was as to the character of '- the - evidence you desired to- tender. The .magv istrato in his statement .of. defence says.thafc , you attended and were examined on: oath.. Vou also tendered the evidence of your ■ son, and asked questions which related-to and had been answered at >..>the' . hear- 1 ' ing of the case. In reply to the magisr , trate you stated that the evidence which:?: you proposed to adduce was similar in.effect,, to that given at tho hearing of the cas<\ - and the magistrate thereupon. declined ~ta - hear that evidence.- When- he asked. yoU: ; if you had any other witnesses to call you.;; replied in the • negative....-The. magistrate adds that his judgment upon the hearing of the summons did not proceed upon the' : ground of alleged fraud at all,, but wai ■; , based on the fact that you did not satisfy - I him that you had not, after providing fur | tho reasonable maintenance and support of' yourself and family since the date of the I judgment, sufficient money to pay the debt. Plaintiff: I could reply to that by evidr. . ence that I have not sufficient means. ; • His Honour: Have yon filed an affidavit , to that effect?' _ Plaintiff: No, I have not had time., . His Honour : Well, I can only proceed upon '■ actual evidence. If there are any furtW \ affidavits it is better they should be filed/ . It is far - better that there should be a \ littlo delay than that I should be . emj barrassed by a lot of irrelevant evidence. After further argument, his Honour said: ' r As it might be that the matter was in- •. ; complete at that stage it would be better; f to adjourn it until Tuesday-at 10.30.- Plain- ■■ tiff would have to serve his affidavits on defendants on Monday in good time, say, ■■ E before 3 p.m. : The Court would extend g the interim order staying proceeding! • against plaintiff until the matter;was dir.; 5 posed of.