SUPREME COURT

Dominion, Volume 2, Issue 333, 21 October 1908, Page 9

SUPREME COURT

( IN BANCO. • \ - MOTION' FOR PROHIBITION. - ■. \v - ' "• ■: e;-j.'searl v. dr.m'Arthur, s.m., • • - AND L. DE LAVAL. •SERIOUS ALLEGATIONS REFUTED. . IMPORTANT JUDGAIENT. , ' ' Sitting in Banco yesterday, Mr. Justice Chapman heard-furtnor argument with, respect to an application'made by Edward John Searl for a writ of prohibition restraining Dr. M'Arthur, S.M.', and Leo do Laval" from further proceeding upon , a judgment summons. Plaintiff appeared ;'in' persoh.;',' Mr... Myers represented the magistrate;"'and Mr'.' Toogood was. present on'Jiehalf; of de'Laval. ' CASE FOR THE PLAINTIFF. . .'.When the case was called on, Searl said that in the judgment ! summons he ..was called upon, to, answer two charges—one of fraud rind the other with reference to, ability to pay j the debt. He had wished the 1 charge of fraud I to be heard; he had nover thought that the order could be made solely ori,.question of : means;'; Being a layman,-'he wss not in d .position to know what questions he;was at liberty to put to'his son with respeot' tp thp charge of fraud, Tho question of fraild 1 was 'gone into; he was- asked when upon oath whether he had committed fraud. If the question of fraud was. abandoned, either the magistrate or counsel for tho judgment creditor would have said so at the hearing. ': His contention was that a 1 judgment debtor was entitled as of right to'have any question of fraild tried, at toe hearing of the judgment summons. -The only point at issue at the original hearing was whether the : money- was owing.; - '.. .' V His Honour: I canlt retry'the first case. • Searl :' At «the hearing of the judgment Bummons I had additional evidence. ' . His Honour ; That was what, the magistrate refused to Hear. You ask me to hear it now?. Vv . i '• \i:.' '7 • Searl; T did not know, of the evidence of the additional„witnesses when the claim was' heard. Their names are Maclaine and Pope.. His Honour : Their evidence was to rebut the charge of fraud? V•Searl: Yes. Continuing', he. read Sections 7 and 8 of/the Imprisonment for Debt Abolition Act, 1 1874. There must; lie submitted, be conclusive evidence, eithef. oral, or "by affidavit, that' fraud ; had "or , that he<had the : means totpay the debt. As - there $as no evidence fithat 'effect, 1 the ; magistrate Had no power to ma'ke'the order. The only' question lie was asked with respect ;* to! his/ability to pay was as to theainount of Mb w&gesV-Nothing -was /said' the' 1 amount required' to maintain his family/. It was .customary-to ; put such'questions. / ' V Mr. Myers: How'do you know'?. Searl: I have heard m'anj; of: them. I have been there-before. Continuing, he said the.; effect of a section in the Act of 1903 ; was to throw upon the magistrate the duty of infijiirme as to - debtor's 'means. - . , " ;His - Honour : The law. 1 in 'New 'Zealand bow casts the onus of proving that he. has not the means "on the. debtor; . .- Resuming, Searl contended vthat the Court had the-power under the' Act .of 1874"to.review "thedecision'of ; the magistrate. . ; /■;ARGUMENT IN REPLY. .V': . Mr.. Myerß. 'on behalf ...of; the said it was' absurd for.- Sear J to say,; that the ground on. which the - judgment 'summons;. Was. made was •• tha- charge of ' fraud;-The, order which was \dated October I—-long : before the present proceedings ;.were : commenced— showed that the' .only sgrdund.- on which, it • was issued wasrthat'Vof-'ability to . pay '.'the' debt. The'onus; of -pr'oyini? that he! had .not! the means to' pay-rested on Searl." It was, Laval, contended that-.-jSearlv had .tendered no; evidence',',.showing ' that ho was ' without means;'"' The "allegation- 'of" fraud was; not proceeded writh at:;.the ...hearing;.' and ~the' order was m'ade| on the ground of ability to pay the debt: : ■!■ • In reply, Searl submitted that the charge of fraud was not withdrawn.. What proof could a debtor tender that he ivas unable to pay? He felt sure there was no desire that he should "be sent to'prison if he had not the ,money,'to pay the! debt.' It was one. of the ' first '.cases : of .the' kind in which the' magistrate had; been, represented by; counsel. ~ 'Mr. Myers,:. Who said so?';. It'is" only right that" the "migistrats.!;should';be represented;' '.Searl: vThe'-'Mt'''that'vhe; -'is represented shows that the case is of importance-—that there is something wrong . ' His Honour: Oh, no, it doesn't. ! Searl: Perhaps counsel for defendants will consent'; to the ' case being treated as an appeal? < • ; . ■ Counsel: . That could.- not, be done under the Act. .-- . ' . \ Searl: If the motion is granted it will not 'upset 'the original judgment ".against !me. . Defendants in this'action can again proceed for a judgment summons order. The case affects the liberty of the subject—also the reputation of myself and family. JUDGMENT OF THE COURT. ■ Mr; Justice Chapman,, in, giving judgment said: substantially 'Searl's.. suggestion was that the . magistrate had either ; listened only to one side .or not given due weight in . regard to what was alleged on the. other side. ;It .was .to be tested as a question .of jurisdiction. A suggestion which had just been made that he should now treat .the matter as,an appcfal was an invitation to him ,-fo .embark upon very much the same kind of irregularity as it was .suggested the magistrate had been guilty of. -The facts were simple so far ;as the question of jurisdiction was concerned. The matter was brought before him as an urgent matter upon!an ex parte application and without going very closely into it he had granted a temporary stay, so'that if Searl's case was made out in' prohibition he should have an opportunity to have it made out before the warrant was put into force and be was, sent to prison. The ground on which he had .granted-the temporary stay was ,that there was an'allegation that the'magistrate had. refused to hear evidence upon a particular point,,. •'■ - -• . Upon exa'lwning the matter ..more closely it did not.appear that the,.point r iipon which the magistrate refused to hear evidence was the ground upon which the magistrate decided the case. The magistrate in his affidavit: set out that .lie had not acted upon the ground of . fraud, and that the witnesses! who attended whom he refused-to hear were admittedly witnesses who .oould speak to that ground alone: .:Thb magistrate went ,on to say'that he had decided-the case .upon the groymd:that Sear! had riot proved to his satisfaction that, after providing for the reasonable • maintenance of himself, and his family, he had not, since the date of the 'judgment, sufficient money to pay the ,debt. In that the magis-trate-had relied, upoii the very :' wording of tho Act. It was not open to tho Court, to go into the question of what evidence the magistrate had before him' or how far he was , justified in coming to the conclusion to which he came. The Supreme Court could only interfere if in some case it was proved clearly that tho man had- not the means and tho magistrate had not really, honestly' and properly considered the question. Not only was he far from being able to say so in the pre-, sent .case, but .ho said that "there w ; as, : no" ground whatever for the suggestion that tho magistrate had not properly considered tlic question. ■ There.was no other course open to him'than to say that so far from,/the magistrate having no jurisdiction to make the order, he (his Honour) had no authority to interfere with the. order. The motion must be refused. . ' With regard to tho question of costs, his Honour sairl that, so far as defendant Do Lava] was concerned,'costs .must- h'e allowed to him in the ordinary course. He thought also it was a case where costs .should also be allowed to the magistrate. / His reason was that the grounds taken by Searl were such that if he had succeeded ; in making out his allegations the Court would have been justified in giving costs against the magistrate. Costs'of £5 os. would'be allowed both to Do Lavel'and'the magistrate.