TO SHOW CAUSE.

Evening Post, Volume LXXXI, Issue 112, 13 May 1911, Page 5

TO SHOW CAUSE.

A WRIT OF ATTACHMENT. ROSE v. MACOONALO. NEW POINTS RAISED. Thomas Kennedy Maedonald appeal*, fed before their Honours the Chief Jus- ' iico (Sir Robert Stout) and Mr. Justice Chapman to show cause why he should not bo committed. The application was in respect of non-compliance with an order of the court for the payment of £3264 5s 9d ordered to be paid on 22nd December, 1910, as the result, of proceedings in connection with the Greenfield estate. The issue of the writ was authorised on 10th February, 1911. Ml. Macdonald was present. ' Mr. A. W. Blair appeared for the Rose family and Mr. C. H. Treadwoll for defendant, MEDICAL CERTIFICATES. In the course of argument it was mentioned that medical affidavits had beea lodged. In his affidavit, Dr. W._ J. H. His-, lop said he had been practising vi Wei- • lington for ten years, and had professionally attended Thomas Kennedy, Macdonald at intervals for several years, and particularly with reference to his condition of health during the last three years. "During thi» latter period,"' added Dr. Hislop, "defendant has shown mental and physical symptoms of a serious character. ' Such symptoms have been as follow :— "1. (1) Loss and unreliability 'of memory ; (2) Apathy and loss of interest in his ordinary affairs; (3) Intermittent periods of shirring and indistinctivett&ss of speech. ; (4) A condition of continual drowsiness, which, causes him to fall asleep in circumstances where a person in ordinary health would have every inducement to remain alert; (5) During the last session of Parliament I was informed and believe that defendant, while con* versing with another member of the Legislature, suddenly became flushed in > the face and fell back in his chair and remained unconscious for a short period. This attack I believe bo have been a slight apoplectic stroke, or possibly a threatened attack of uraemia; (6) Repeated attacks of profuse nose-bleeding. One such attack in, which I saw him, had beeii preceded by pronounced mwliing of the face, drowsiness, and intense headache; (?) A physical examination shows an abnormally and persistency high arterial blood pressure, some hypertrophy of tho heart sounds duo to perisistent high blood pressure, some degree of thickening, and tortuosity of the arteries, and a marked dilation of tho capillary vessels of the skin, especially on the face. ' "2. These symptoms indicate thai the defendant is suffering from that form of chronic Bright s disease, known aft chronic interstitial nephritis. This disease usually develqps insidiously, and with few or no symptoms over many years, and by the time euch. symptom* us those- above mentioned appear, th« outlook as to health, or even as to life, is very grave, as the patient is subject to the risk of either of two. serious complications. "3. If the defendant is committed to prison a large, amount of worry and) mental distress will undoubtedly be onbailed on him. Worry and mental distress invariably have a prejudicial in* flence on the disease from which he is suffering, and it is practically, certain that the symptoms of mental failure will be aggravated and the risks greatly increased. Dr. Collins said he formally attended the defendant and was familiar with bis condition of health at the present <iime, having seen him recently in consultation with Dr. Hislop. Ho had wad a copy of the affidavit of Dr. Hi&lop and he concurred therein. THE ARGUMENT. Tho Chief Justice : I suppose you begin, Mr. Treadwell? Mr. Treadwe|l : lam rather at a loss. It is my friend's motion. The Chief Justice said he thought tho function of the court was at an, end. Mr. Blair said the practice appeared to be that defendant was simply attached, and lie remained there for the time. This form of writ was taken from Stout and Sim. Recently it was the practice in England to endorse oil the. writ a note to the effect that imprisonment on it could not be for a longer period than a year. Continuing, Mr. Blair said 1 it was a matter of imprisonment by way of detention, not a question of hard lawour. It was open for the defendant at any time to move to be discharged. An affidavit had been filed by Mr. Treadwell, which actually reached hi 6 office. at 3 o'clock yesterday, also a later confirmatory affidavit. Counsel did not Be© either of them till 8 o'clock. Mr. Treadwell : That's not my fault. Mr. Blair : No, but t do suggest it is my friend's fault, as he knew ter days ago these proceedings were coming on, and yet he waits until it was a matter of a few hours before the nutter came before the court. It is a question which the court will consider upon a proper application for a discharge, and we would have an opportunity to be heard and to call other medical evidence. It is submitted, therefore, that the court has no duty to perform, but simply to leave the-attach-ment as it is, and to allow tho sheriff to act upon it. "This is the .most extraordinary case. I have ever heard," said Mr. Tteadwell. "Here was an appointment expressly asked for b£ my friend for today, bo that this matter could bo gono into." The Chief Justice : I mentioned to you that I didn't know there was anything to be gone into. I don't even now, see what function there is. , Mr. Treadwell : If there is any irregularity in the proceedings your Honours will probably take it in the form of a motion by me under the Act of last year, which confers jurisdiction to deal with the matter. Mi. Justice Chapman : After arrest? Mr. Treadwell : The defendant is here in custody. I assumed I might refer to the affidavits filed in the action. Mr. Justice Chapman : They 'may have to be -mswered. - < THE MERITS OF THE CASE. Mr. Treadwell : I mean the affidavit* with reference to the facts of the case. This is a proceeding upon a statement as to certain charges found against the defendant— a certain balance found against the defendant. For all this court knows, tho position may bo that there is nothing owing. There may bo a good answer to this. Tho Chief Justice : Ought you not to have raised that point before ? Mr. Treadwell : I couldn't raise it on the motion before your Honours as to the writ. I couldn Igo into tho merits then. The Chief Justice : Thi> writ is issued on the assumption that the merits are closed. Mr. Treadwell : No, your Honour. Tho writ is issued on the assumption that tho defendant is in contempt through not paying a I'ciliiin hum of money into Tho Chief Justice j \o«i may say yoi§ ,

Mr, Treadwell : I submit not. The Chief Justice : You don't suggest we can go now into the question of how much is owing*? Mr- TreacKveli-: I suggest that your •, 'Honours can^ for tho purpose of considering whether the defendant ought to be committed. and say whether there is a question hetween him and the plaintiff. The Chief Justice : I don't see that. The Court oi' Appeal has decided that tho write was' to be issued. We can't •jo .into the merits now. The only point you can raise is ,that since that decision was made you have paid the money, or the other point that you propose to raise in the affidavit, which. I think must be made on a motion for discharge. 3"ou can move for discharge. Where is your motion? " A MISUNDERSTANDING. Mr. Treadwell : Will your Honours take the motion as filed ? There l has apparently been a misunderstanding about tho position. When this matter was' before the Court of Appeal Mr. 'Justice Cooper said that on this motioii the defendant would be heard. lam rather taken by surprise- by this, because nhat was the view I took. l'he Chief Justice : Have you any authority for saying that once the writ has been issued to attach you csn raise this point? Why couldn't you have raised j!/ before ? ' Mr. Treadwell : This was the course taken in tho Nodino case. TJhe Chief Justice : AVere 'there points raised after Ma arrest Mr. Treadwell : Yes, when ho was brpftght up to be dealt with. If it will , gel'" over bile difficulty I will file a mot'ioH. 1 Mr. Blair :My friend ,ha 3 himself altoaether to blame. Treadwell : I object to that state- , merit. The Chief Justice : Do you object to filo-a motion now ? . ' COUNSEL'S POSITION. •Mr. Blah* : The difficulty I -am in is this"': Nobody 'regrets' more, tlian I do th?? preeeiit position ' of affairs. Mr. TrjsadwelMias realiy nothing to complain of,* r. because he had ton |days which he would otherwise , not have had. I find thirt immediately the certificate of the Court of Appeal was filed and the necessary, order taken out I could have issued an .'attatlimeu'i without consulting Mr. Tread well, and the defendant would have been arrested and- properly taken into 1 custody and there remained. However, I; assumed, wrongly, I admit,- that my'ifriefvl would' have an opportunity of being hea'rtUjand to, this appointment was made. _ AV^ now discover that my friend has not the opportunity that he thought he .had. He asks me now to concur in —^— " The Chief Justice : Treating this as a motion made by him for discharge. Mr." v Blafr : Yonr Honours will see that in that my Sri-snd is to blame. Mother, doctors wanted.' : Mr. Blaif said he would require other medical .gentlemen, to answer, these- afli&aviks? r< " >411 " -"■ ' ' The Chief Justice : There are two questions : Whether the affidavits would be an answer to tho writ Mr. Blair : And as to whether the other doctors are of the same opinion? The Chief Justice : I suppose Mr. Treadwill will be prepared to say it is an answer to the writ. Under the old practice it would not be an answer, ' but it might be in this case. ■ Mr. Blair : I submit that it is not an answer. It is absolutely impossible for me to get' the necessary examination, and find medical gentlemen to ex- ' amine the defendant an<T get an opporftfani/y to "Be sufficiently instructed to ' pwpare affidaxibs hy these gentlemen. t asked if the court had power %j adjourn; the matter. It was not a qpasfcibm of bail. The Chief Justice: The better thing to» do is to .adjourn until 12 o'clock and allow Mr. Treadwell to file a> motion to move for a*discharge from- custody. Then '. the point as to whether we have! power to entei^ain it on that ground can be I argued., You (Mr. Blair) will have to ' jget an '^djournmeiit to complete your evidence at we ha.ye the power. "Mr. -Blair: Here as another difficulty. 1{ defendant gets out of custody the .whole thing wall be discharged. The Chief Justice: He will have to remain in custody. Mr. Tjeadwell remarked that there were quite a number of matters the court should take into consideration when dealing with the question. , The Chief Justice: 1 think that you should have raised the question before. It does not seem . to me that wo have, jurisdiction. It is a question of jurisdiction,' not a question of concession at all. The court thereupon adjourned. AFTER THE ADJOURNMENT. When the court resumed, Mr. Treadwell said : "There seems to be very little authority on the question put to me, but it seems to be a fact that it has been recognised by all Judges as a reason for a stay." Counsel quoted Oswald on contempt of court, which supported his view. The Chiet Justice : That deals with contempt of court. Mr. Treadwell : I do not think so. His Honour . Caa you find any sucli cases ? "I found two or three," replied counsel, and he proceeded to quote them. There was no duubfc that comnletu discretion' was given by section 4 of the Judicature Act with reference to lho mcUtsr. He suggested that the best course would be to adjourn, and > stay the operation of the writ for such time a« would eiiabJs further affidavits to bo filed. Tho Chief Justice : If a discharge is granted, can there bo a rearrest? Mr. Treadwell : No discharge, only » mere stay. His Honour: Can there bo a stay? "So the cltitutts sajs." replied counsel. "Defendant will enter into any recognisances, although V don't think they aro required. 1 will give a. wrnstaie .undertaking that thu writ shall :M.?r(U. >1 "' Tho Chief Justice: You should have Jilcd the affidavits in iimo for the others to bo put in. Mr. Treadwell: My fi-ond and 1 compictdy understood tho position, and it was" borne out by ihc Couit oi Appeal. Jii-j HoHoui I : " After the iseuo of tho w-i-il of attachment tho sheriff issues tho warr&nt. and that warrant authorised 'niririsonrnent. There the matter stands. i\L\ Treadwell want on. to. say that the matter was very important, and ho asked that the application for adjourn inent should be acceded to. The object cf these proceedinga was net to obtain money, because defendant had net gob The Chief Justice: The object of the proctodiivrs is', to obtain money. Mr. Tieadwcll said he would like to hnyo an opportunity of putting iho ta;ta before the*- court.' The ' Chief Justice said ' counsel had the., opportunity before and he did not t.ike Ji.- ■II cuuld even have been clone bafoi° tho Court o." Appeal. The wholo cjiwi'lion «::«, oi'fiit ths writ to ifsuo? Ife did not think counncl would find iinv rnse where the case LO'.ild be ai{/■..i<l in part',. Air. Ti'-"clv.-j'! ::aid it hail not yet "appeared ih"<- H'C-S -™ s & large sum cf money w-v-h!.; to Jefaidanfc hy ijiaintiffe ;.s oointTsiisioJt. lutt tb;ij- CGUunisskmiv.iM no!/ be claimed v.-mle the dofend.i:it war; i;e?<u« -he court. !«■ scggisl-t-r! lhal -ovid h? &?t. tin gainst an apI '.i.-oi.cn nude tor the p;ujKn>e of coin-•i-iLU".r •»<• cMwidaut for iion-p-jyment TM Chief .Jusiire'aEjain Jrgod that iUih o -i(i-hk>a shea! 1 ! haw baen taken up at ari ejiiier :'wge cf the proceedings.

What Mr. Treadvvell ivas asking was really a rehearing. Mr. Treadwell said no. What he was urging was that there were circumstances which ought' to excuse? committal in respect of this default. If tho court said he must not go into that he could not help himself. Mr. Blair submitted that there had been no case in which a charge had been granted where a trustee or a per■son still in\ contempt had been discharged on the ground of ill-health, except one case, in which discharge waa made on the order of the Secretary of Static— practically by the exercise of tho Royal Prerogative. The Chief Justice : That wa3 not a trustee case? Mr. Blair : Apparently not. 'There was, he submitted, no " authority for the court lo set aside the writ unless the defendajit had paid the money. The reason of illness adduced by counsel for defendant would probably be dealt with Ij3' the exercise .of .the Royal prerogative. If the court granted' Mr. Trcadwoil's application' it would say in effect : "Wo grant you leave to attach, but yon are not to use it." If ill-health was a ground it should.be put forward at the timo the application for the order was opposed. Mr. Justice Chapman said in this case the illness was progressive, rand might bo mow serious at a later period of the proceedings. - Mr. Blair suggested that the' proper time to make the application ' for discharge was after the writ had' been executed. . • - . * Mr. Treadwell : After .all the harm in done ! ' Mr. .Blair said the writ having now been executed, it was not a question of suspension, but ono of discharge. .The Chief Justice : "Ifc is really an application for htay, is it not?" He thought there was power to stay tho operation of the writ, but not for discharge. Mr. Blair said 'the danger wa6 that the defendant might consider it a discharge. -' The Chief Justice: It doesn't matter what he thinks. Mr. Blair said that if he was not in doubt as to what would occur he would be glad to meet the suggestion, but he thought .that if the operation of • the writ was suspended defendant would be discharged, and there would have to bo a fresh arrest. The suggestion that defendant had a claim for commission was of tho flimsiest description, and, as a matter of fact, had already been made during the proceedings. He submitted that the deiendant could not now apply for discharge on the grounds set out by counsel. The Chief Justice said the court had not made up its mind whether a stay of operation of the writ would operate as a discharge-. If ifc did operate as a discharge the result would be that the proceedings would beat an end. -The court thought there was a risk of "that, ; and in ord-ai: to consider the matter fur- " ther .' and- at the same time 'to -put the defendant to ho greater trouble than necessary, and so that justice might be done, the court decided that defendant should remain in the custody of tha sheriff until Tuesday morning at 10 o'clock, when the court would be able to 6ay whether it would grant a stay of the operation of the writ, and that it would not be a discharge. As to the second point, in reference to the health of the defendant, ihe court had not made up its mind as to whether that was a ground for discharge or not. It required further consideration. In order that plaintiffs might produce evidence as to health the court would adjourn that matter until Friday next, at 2 p.m., when the question could be discussed. Plaintiffs would have the opportunity of examining the defendant by medical experts and filing affidavits if they so desired. His Honour concluded by referring to the question of examination of defendant by direction of the court. This question, however, would be left open. In reply to Mr. Blair, Mr. Justice Chapman said that the parties should close their evidence by Friday. It must be understood that defendant must make himself available to plaintiff's doctors. Mr. Treadwell : _ The results of hi& being in custody might be serious. The Chief Justice: We can't run any risk in a thing like this. The term "in custody" is technical, and does not, in this case, imply detention.