FLAW IN MACHINE

Dominion, Volume 29, Issue 302, 17 September 1936, Page 12

FLAW IN MACHINE

“Stale” Judgment Summons

Dominion Special Service. Feilding, September 16. Proceedings in a judgment summons case heard by Mr. R. M. Watson, S.M., in the Feilding Magistrate’s Court yesterday, were held up on a point bearing on the procedure to be followed when an original order had become “stale.” When about to make a judgment summons order on a second application the magistrate hesitated in consequence of a reconsideration of the position, and an adjournment was taken to go into the legality of the proceedings. A judgment summons' ordbr had previously been made in respect of the same judgment debt, that order providing for the suspension of the warrant so long ns judgment debtor paid £1 monthly. The amount of the original debt was £27 18/6. The order became “stale” one year after it was made, but prior to the full payment of the debt. Under the Imprisonment for Debt Limitation Act. an order lapses.if the judgment creditor does not apply for a warrant of commitment within a year, and he cannot secure a second order, as that would amount to punishing the debtor twice for the same default. It appeared that New Zealand cases on the point conflicted and also that English authorities on the construction of the corresponding English Act were conflicting.

After giving the matter consideration, the magistrate ruled that he had no jurisdiction to make a judgment summons order in this case, and the application was withdrawn. The magistrate told the judgment debtor that be had been somewhat lucky, owing to a “flaw in the machine.” His decision was .reached on the finding in the ease of Shaw v. Brew, taken by Mr. J. Burton, S.M., at tlaweru, where it was maintained I hat successive judgment summonses in respect of the same judgment debt may issue and procure Hie attendance and examination of the judgment debtor until an order for imprisonment was obtained, but thereafter that remedy was exhausted and there was no power to order a second period of imprisonment. “The information will be struck out.” said the magistrate.

“What is the position now!" asked the debtor. “I do not wish to dodge the debt.

“If you do not wish io escape your obligation, you should consult with Mr. D. C. Cullinane (counsel for judgment creditor), who, you should understand, lias not exhausted his remedies,” ob served the magistrate.