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THE COURTS.—TO-DAY., Issue 7978, 6 August 1889
SUPREME COURT—IN CHAMBERS. (Before His Honor Mr Justice Williams.) Christie v. Wood.— Summons to Arthur G. Creagh to show cause why John Macgregor should not be appointed plaintiffs solicicor (Mr J. Macgregor).—Order accordingly. Gordon v. The Dunedin Corporation.— Summons to plaintiff to show cause why defendants should not pay into Court L 25 in satisfaction of claim (Mr Chapman),— Action to be stayed on payment of L 25 damages, and costs on lowest scale (L2 2s, L 4 4s, and L 7 7s) and disbursements. Re. John Anderson, deceased.—Petition for order authorising executrix to apply corpus of estate in support of children (Mr Wilkinson). —Order accordingly, with costs (L 3 3s) and disbursements. Re. William Gow, deceased.—Motion for letters of administration and for dispensing with sureties (Mr James). —Order accordingly. Re John Steven, deceased.—Motion for probate (Mr Wood).—Order accordingly. SUPREME COURT—IN BANCO. (Before His Honor Mr Justice Williams.) RE JOHN CALDER, Motion calling upon the gaoler of_ the Dunedin Gaol to show cause why a writ of habeas corpus should not issue to bring up the body of John Calder, in order that he may be discharged from custody without the writ actually issuing, upon the following grounds:—(l) That no valid order or warrant exists for the detention of the said John Calder ; (2) that no valid order of commitment existed upon which a warrant for the detention of the said John Calder in custody could legally have been issued ; and (3) upon further grounds disclosed in the affidavit of Francis John Stilling. The affidavit above referred to set forth that on the 2nd inst. Mr Stilling perused the papers in the Resident Magistrate’s Court connected with tho hearing of a judgment summons against John Calder; that no order of commitment as directed by section 5 of the Imprisonment for Debt Abolition Act, 1874, appeared in the said papers, and he was informed by the clerk of the Court that no formal order of commitment had been signed ; that a document purporting to be an order of commitment appeared in tho said papers, but tho said document was unsigned, and was dated the 31st July, and purported to be made on grounds other than those disclosed under a minute of tho Resident Magistrate made at the hearing of the judgment summons ; that tho minute referred to appeared on the back of the summons, and referred in no way to the said summons ; that tho jurisdiction of tho Resident Magistrate to hear the judgment summons was not shown on the minute; that there was nothing in the minute to show that the judgment summons was ever heard or adjudicated upon; that the minute did not specify the place whore or the person to whom the moneys referred to were to be paid, nor did it specify in accordance with' the Act that the moneys should be paid forthwith or by instalments, or within any time limited; that the minute did not disclose the date from which tho term of imprisonment was to ran; that on the 3rd August ho (Mr Stilling) made further search, and found no further order of commitment, but ho had this day found that there was non attached a formal order of commitment, which lie was informed had not been signed on the 3rd August. Mr Fraser appeared for Calder, Mr Hosking for Thomson, Bridger, and Co,, plaintiffs in the Court below. Mr Fraser moved for a writ on the grounds stated, and quoted extensively from Victorian and other authorities in support of his contention that the serving of notice of the original commitment was a condition precedent to the issue of the fraud summons. Mr Hosking said that tho contention on the other side appeared to be that unless a formal order of commitment, in accordance with the form prescribed in the schedule of tho rules, was in existence at the time the arrest was made, the prisoner was entitled to be discharged. Ho submitted that if it were proved at the time the return to tho habeas corpus came before the Court that a valid order of commitment existed, the prisoner was not entitled to his discharge. He admitted that before that Court there was no legal evidence of the fact that an order of commitment existed. His Honor said that that fact was assumed in Mr Hoaking’a favor. Mr Hosking said his contention was that tho Court saw there was in existence a valid order of commitment, upon which he assumed at the present moment that a valid warrant was submitted to the gaoler, because it was an absolute and necessary precedent to the issue of a warrant of commitment that an order of commitment should be drawn up in accordance with the rules. For the purposes of an order of commitment he submitted that the minute of the Jndge was equivalent to a formal order. He also submitted that under section 11 the warrant of commitment was perfectly justified, although the formal order had not been drawn up, and that the order of commitment might be amended if improperly drawn up. His Honor reserved judgment.
THE COURTS.—TO-DAY., Issue 7978, 6 August 1889
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