IMPRISONMENT FOR DEBT.

Evening Star, Issue 10402, 25 August 1897, Page 3

IMPRISONMENT FOR DEBT.

The question of how often a man may be imprisoned for default in paying a debt cropped up this morning in the Magistrate's Court. The exeoutora of .M. A. Christie sued George Schultz for £4 ' 17a 6d on a judgment summons. The case was heard on Friday last, and His 'Worship made an order of commitment in default of payment. The order was, however, subsequently cancelled on it being ascertained that Schultz had already undergone imprisonment in respect of this same debt. Mr Barclay, who appeared for the plaintiffs, this morning renewed the application for an order of commitment. In doing so he mentioned that he was not aware of the point having previously been raised in New Zealand. The question for His Worship was whether after a judgment summons had been issued, an order of commitment given, a warrant issued and the man imprisoned.and the debt remaining unpaid it was in order to have a second judgment summons issued, a second order of commitment given, a second warrant issued, and a second commitment made. There seemed to be nothing whatever in the Act to prevsnt that being done. On the contrary, ic seemed to be expreaoly provided for such procedure. The principle of these summonses was that a man was punished by having an order made against him, not because he had not paid the debt, but because ho had been guilty of contempt of court in refusing to obey the order of the Court. In support of this he ci ed Stoner v. Fowle, 13, appeal cases, page 20. In the English Act there was no such provision in was contained ia section 6 of the New Zealand Acf, so that it was evidently the intention of the framer of our Act to make it harder for a debtor to escape from punishment in default of payment.

His Worship: On the contrary. The intention of the framer of the Act was undoubtedly to do away with imprisonment for debt altogether, but that change was modified on ascertaining that public opinion was not far enough advanced for it. . Mr Barclay said that whatever might have been the original intention of the framer of the Act there was no doubt as to the intention of the Legislature, for the maximum imprisonment allowed was three months, whereas in England the maximum was six weeks. There was no such provision in the English as the section in theNewZealand Act, which provided that soof ten as a Bum of money due under a judgment or an order of the Court: remained unsatisfied it should be lawful for the person entitled to recover such money to obtain an order from time to time from the Court for the com'mitment of the debtor.

His Worship pointed out that that had reference to judgmenta in which payment was ordered by instalment?, in which case 3 each instalment was looked upon as a separate debt. Mr Barclay said that there were several English cases bearing on the subject. In addition to the one he had cited there was also Begins v. Stoner (57 ' Law Journal, 1 Q. 8., p. 510). In that case it was decided that a Becond orier might be issued and a second commitment made. 'Xhere was no imprisonment in the first instance, so that it differed in that from the one now being considered. The order for commitment had run out, and the man had not been imprisoned, and the Queen's Bench decided that the magistrate had a perfect right to issue a fresh order. Counsel cited Evanß v. Wills, 1 Common Pleas Division, page 229, and Horsnail v. Bruce, 8 Common Pleas, page 378. In the regulations there seemed to him to be nothing against the making of a second order so far as he had been able to discover.

His Worship: Do you know of any case in the colony where there has been a second imprisonment in respect to the same debt. Mr Barclay: So far as the ' Digest' goes there does not appear to be any case. The old regulations expressly said there was to be no second imprisonment for the Bame debt, but that has been deleted from the ones now in forco.

His Worship: I know that several other Magistrates have said that they have no power to imprison a second time for the same debt, and I must refuse to make an order.

The order was accordingly refused on the gTonnd that defendant had been previously imprisoned on an order in resr/eot of the same debt.