RESIDENT MAGISTRATE'S COURT.

Otago Daily Times, Issue 9391, 2 April 1892, Page 6 (Supplement)

RESIDENT MAGISTRATE'S COURT.

VllI DAY, AI'UIL 1. (Before Mr K.*ll. Carew, it.M.)

I',. J. Bryant v. Francis 0. Millar (Wellington).— tjlaim 1,5, on a dishonoured bill.—There was no appearance of this defendant, and judgment was given by default for the amount claimed, with costs.

W. W. Kln.slie (Sydney) v. Cieorge Rowlands.Olaim .44 .is, on a judgment summons.—Mr Sim appeared on behalf of the judgment creditor, and i>lr_ Meatyard on behalf of the debtor.—A preliminary objection whs raised by Mr Meatyard on the ground that, whereas under the third rule »' faiilcut Magistrate's Courts, issued in July I.MO, it was provided that " an application by a judgment creditor for the issue of a judgment summons under the act shall be in writing, signed by the applicant or his agent, . . . and accompanied by an alHdavit in the form (2) in the schedule," and whereas the form prescribed that the affidavit should be made by the plaintiff, in this case the altid-.ivit was made by the pUintilfs solicitor.—Mr Sim submitted that there was jurisdiction on the part of the magistrate to hear the case, and that if any objection was taken to the procedure it should be taken by the clerk of the court prior to the issue of the judgment summons.—His Worship, in deciding the point, said: I think it cannot be contended that where a plaintiff, as in this case, is absent from the colony, lie is to be prevented from receiving the benefit given by the act in the way of bringing pressure upon judgment debtors, which would be the effect of insisting that an affidavit or declaration under rule 3 under "The Imprisonment for Debt Abolition Act 1874" must lie made or taken by the plaintiff personally. If, however, that is the meaning of thu regulations, it seems to me that it would limit the operation of the act in a way not intended. The power to make rules is given in these words : " General rules and orders may respectively be made by s-.ich authorities as aforesaid for the purpose of carrying this act into effect." That clearly does not give the power to restrict the operation ?| ,* ne act in the way it would do nMr Meatyard's contention is correct. Objection overruled. The debtor, examined as to his means, admitted that he had promised to pay off by instalments the judgment for L 5 ss, given against him on the 12th May 181)0, and he had paid ?2in 1 1O' S- He had a stock of furniture in May LbDU, but it was seized under distraint for rent, and was sold at auction.—His Worship: How much did the furniture realise?— Witness: I could npt name the sum not if you were to give me five guineas.—His Worship suggested that rive weeks might meet the desired end.—Witness: If your worship threatens me like that, you can do what you like. I am an American citizen.—His \\ orslnp expostulated with the witness, who, instead of listening, excitedly complained of his treatment.—Mr Meatyard remonstrated with his client, and counselled him to answer the questions that were put to him.—Witness: I have been hardly treated in the court. The last time I was insulted by this man (indicating Mr Sim).—Mr AnV'i : '' Rowlands, when were the goods sold.— Witness : They were sold by the landlord. I think your worship had better adjourn the case if this n going on.—ln answer to further questions from ALr bun, witness said he carried on his business tor some months after the judgment was obtained, and prior to his being sold out by the landlord, but he was not sure as to the dates—he did not come prepared to answer these questions. He now worked occasionally for Mr Johns, but he got no wages, lie got Gd or Is for carrying parcels.— Mi-him: What money have you got from Mr Johns altogether ?-Witness: So little that I would be ashamed to say it.—Mr Sim : You had better say what is the amount?— Witness: It is impossible for me to tell you.—Mr Sim : Have you got LlO from Mr Johns?-Witness: I would not like to say I have not.—Mr Sim : Have you any furniture of your own?— Witness: Very little—about ho worth.—ln answer to Mr Meatyard, witness Slid that ho had a wife and eight children, only one of whom earned a living. Since the date of the judgment Mr Asher had put two distresses in tlie house for rent, and witness expected another one shortly. His earnings had not averaged LI avveek since the date of the judgment, and there n.irt been a great deal of sickness, besides death, in his house.—His Worship said that the debtor's mode of answering questions had been very unsatisfactory, and made him liable to committal on that point, but he (his Worship) thought it was tlie man s manner more than anything else. He ilia not tlnuk he could make an order against the Qabtor.—f he case was dismissed. R. Todd v . Charles Randell.—Claim L 3 16s Gd, on a judgment summons.—Mr \V. C. Macgregor appeared on behalf of the judgment creditor, and ii b- Adams on behalf of the debtor.—Mr Adams said that in this case the date of hearing mentioned m the summons had been altered the signature "William Somerville" had been struck out, and the summons had been re-signed He submitted that the alteration of the date and the cancellation of the signature constituted a if ~ lsS?° of*Uc summons, and as this was done on the 2oth March it offended against the rule that 10 clear days should elapse between the issue of tlie summons and the hearing. The alteration nxect the date of the hearing for three days later than had been originally fixed. The alteration was made on the 2oth March, but the summons was dated the 15th March. He contended that it should be dated the 25th March, because the cancellation of the signature and the re-signing constituted a new summons.— His Worship : If the date were the 25th March ?-Mr Adams : Then it would be within the 10 clear days for which notice must be given of the hearing.—His Worship, after inspecting the documents, observed that the summons was originally issued on the 15th March for hearing on the 28th March. It was returned on the 25th March, not having been served, and the date of hearing was put back ttiree days. Hie summons was re-signed and re-issued, but instead of bearing date the 25th March, it bore date the 15th March.—Mr Macgregor said that Hie stamps on the summons showed that it was issued on the loth March.— «*. \\ orshl P stated that the stamp only showed tliat the fees were paid on the 15th March.—Mr iMacgregor said he had been taken by surprise in regard to the objection, as ho knew nothing about the documents, and he would ask that the case should stand over till Monday. Mr Adams, he ■wded, might have mentioned the matter to him.— Jlis Worship said he had no doubt that the summons was issued on the 25th March, and that the 10 days notice had been allowed.—Mr Macgregor .repeated his application that the case might be allowed to stand over till Monday.—His \\ orslnp refused the application, but said that the summons could, if Mr Macgregor wished, be reissued.—Mr Macgregor: And no fresh fees -enarged ?—Mr Adams said that if the summons wasre-issued, be would, at the rehearing, raise the point as to its competency, sis having been exhausted through coming before the court—Mr Macgregor said he would ask his Worship to let the judgment creditor sign a fresh application.— His \Y orship : Then there would be fresh fees — Mr Macgregor: Your Worship has a right to waive the fees.—His Worship replied that lie had not, but no court would make a suitor suffer through the mistake of an officer of the court.— The case was struck out; it being understood, however, that the summons might be reisued without payment of fresh fees.