IMPRISONMENT FOR DEBT.

Hawera Star, Volume XLVII, 17 August 1928, Page 11

IMPRISONMENT FOR DEBT.

NO SECOND' SENTENCE. HAWERA MAGISTRATE’S DECISION. Delivering his reserved decision in judgment summons proceedings taken by A. IT. Shaw, of Hawera, against James Brew seeking, a second order on a judgment debt, Mr J. S. Barton, S.M., held in the Haweiia' Court to-day that he had no power to make a second older for a term of imprisonment in default of payment of the debt. The judgment debtor had already served a .sentence of imprisonment in respect of the judgment debt and in the further proceedings taken the question was raised whether there was power in those circumstances to order a second period of imprisonment, providing tliAt the necessary default could be proved. “I am satisfied that the English case of Evans v. Wills is an authority for holding that there can toe no second order for imprisonment unless our Government for Debt Limitation Act, 1908, and its amendments differs from the corresponding English enactment .in some way that displaces the reasoning on which that case was decided, ’ said Mr Barton. “I find that our Act is very like the English Act in its design and wording and like the English Aict its true 1 meaning and effect is to be ascertained by taking into account the history of its subject matter. OASES FOR IMPRISONMENT

“Each Act at is commencement provides in general terms l that, except as therein excepted, no person shall he arrested or imprisoned' for making default in payment of a sum of money. The circumstances on which the exceptions are based are firstly, the existence of certain debts being either one or two named debts of record or debts based qn fraud and secondly, non-pay-ment oB a judgment debt toy a judgment debtor, who could pay, but who lias willfully refused to pay. Thirdly, the period of imprisonment in the excepted cases is limited tO' throe months and fourthly, it is provided that imprisonment in the excepted cases does not extinguish the judgment debt or cut clown the remaining remedies of the judgment creditor. “Prior to this legislation the judgment creditor could seize the person of the debtor in satisfaction of his judgment debt by issuing a unit of capias ad isiatisfacrendumi. Under that writ the debtor was arrested, taken to prison and tih'ore unt-il he ma-ci'e satisfaction of the debt. This was the highest form of satisfaction known to the law and, having adopted it, the creditor’s remedies were gone altogether. If it failed he could not resort to the debtor’s property.” The legislation at present under consideration almost abolished _ that right though a residue existed in the provision for imprisonment up to three months in certain cases. ARGUMENT CONSIDERED. “There is, however, one part of pur Act that is different from the English Statute,” continued Mr Barton. _ i-t is on that difference that the mam argument of Mr L. A. Taylor counsel lor the judgment creditor, is based in the present case. The reference is to section 5 which provides that whenever and as often as any sum of money due under any judgment or order in any court remains unsatisfied it shall be'lawful for the judgment creditor to obtain from time to time a summons in the prescribed form.’ . “The summons here referred to is what is popularly known as the J augment summons. Counsel relies on the words ‘whenever and as often as, ana from ‘time to time’ appearing in tins provision and submits that it implies that the summons so obtainable from time to time may be issued and used to procure the examination of the debtor and his imprisonment as often as a separate default of the kind included in the .statutory exceptions can toe proved against him.” TERMS UNEQUIVOCAL.

After .giving careful consideration to the argument the Magistrate came to the conclusion that the'words, while apt, did not go far enough in support o, that reasoning and he was not- justified in reading any implied intention of the legislature into the section of the Act. °ln his opinion the Act was unequivocal and complete effect could lie and was in practice given to its wording. ~ “A judgment creditor does from time to time as authorised by 1 section 7 take but and procure service of successive iudgment summonses on his judgment debtor,” concluded Mr Barton. “Thereafter the procedure is governed by the Act as interpreted by the Court oi Common Pleas in Evans v. Wills. The successive judgment summonses may issue and procure the attendance and examination of the judgment debtor until an order for imprisonment is obtained. Thereafter that remedy is exhausted, although by section 15, the remaining remedies are preserved. -I therefore hold that I have no power to make the order asked for m this case.