The Opunake Times. FRIDAY, NOVEMBER 22, 1895. AN IMPORTANT RULING.

Opunake Times, Volume III, Issue 145, 22 November 1895, Page 2

The Opunake Times. FRIDAY, NOVEMBER 22, 1895. AN IMPORTANT RULING.

Some short time back our attention was called by G. W. Gane, Esq., J.P , to a contention raised in the Court at Christchurch that a Stipendiary Magistrate had only the power of a J.P., and consequently that a J.P. when sitting on the Bench with an S.M. had equal jurisdiction. Our opinion was that in all civil business when the S.M. was present that a J.P., if sitting, was purely ornamental, unless, by courtesy, the S.M. might use him as a reference in matters relating to value of fencing, labor, &c., which he might be assumed to have a practical knowledge of. We extract the following ruling from the Pahiatua Herald, which was given by Mr Hutchison, S.M., as to the power of justices to issue attachment orders : To determine whether or not justices have the power to issue interlocutory orders for the attachment of moneys, both the Act and the rules, which by section 9 are an integral part of the Act, must be considered. The respective jurisdictions of magistrates and justices are clearly and beneficially defined by the Act. Sections 20 and 80 define the ordinary and extended jurisdictions of magistrates ; and in both sections the power of attaching moneys is given in express terras (subsection d). Section 32 defines tbe jurisdiction of justices, and contains no express provision for attaching moneys. The jurisdiction is an entirely new one, and ought not to be assumed by inference. When, therefore, we find this novel jurisdiction explicitly given to the magistrates we should expect to find it given as explicitly to justices, if it were mentioned that the latter should have the right to exercise it, but the contrary is the case. The concluding sub-sec-tion 82, it is true, ii a general provision, giving justices jurisdiction in respect of applications in relation to cases they can hear and determine. But apart from the rule of instruction that a general provision such as this is restrained by the specific provisions which precede it, there are a variety of matters to which this provision can apply without touching upon Attachment orders; for example, applications to reinstate, to amend to add parlies (at the hearing) and to appoint a next friend (at the hearing). The jurisdiction given to justices is further limited as to time and place. They can only adjudicate at a regularly appointed sitting of the court ; and then only on the absence of the magistrate. They have no jurisdiction except when sitting in a court duly constituted, and their jurisdiction ceases if the magistrate is present (sections 38, 32 and 1G). It therefore follows that as justices have only jurisdiction when sitting in court that they have no power to deal with applications except such as can or may be made to them while in sitting. Now there are two separate proceedings contemplated with the object of attaching a debt. One which is where immediately upon judgment being given in cases where the plaintiff has given previous notice of his intention to examine'the defendant. In such a case it seems to be quite clear that Justices acting in court to bear and determine cases within their jurisdiction must necessarily have the power to make an order under 5, 135 of tbe Act. But rule 35 shows tbe limitations of this procedure. The jurisdiction is to order the immediate examination of the defendant, and if debtor of bis be present in court ami admit his debt, to further order such debtor forthwith to show cause why he should not pay the admitted debt into court, instead of ordering the forthwith examination of the judgment debtor, tbe court may alter his examination to be held before a Magistrate or some other person. The marked characteristic of his procedure is that it is one before the hearing of the case. Tbe other procedure to attach debts is that founded by section 127 ct seij. It is the ordinary garnishee proceeding. Here the proceeding is subsequent to the judgment. The application is an c.v parte one supported by affidavit and may be, and ordinarily is, made in Chambers. Since Justices have only jurisdiction when sitting in an appointed court, it follows, I think that it was not intended that they should have the power to issue interlocutory orders under this procedure. It is further to be noticed that the forms provide for the Stipendiary Magistrate alone issuing attachment orders. Tbe conclusion which a connection of the provisions of the Act leads me to is therefore confirmed by tbe rules. lam therefore of opinion that Justices have no power to make interlocutory orders.