ROSE v. MACDONALD.

Otago Witness, Issue 2983, 17 May 1911, Page 38

ROSE v. MACDONALD.

THE WRIT OF ATTACHMENT. DEFENDANT IN ILL-HEALTH. TEMPORARY STAY OF PROCEEDINGS. WELLINGTON, May 13. Thomas Kennedy Macdonaldappeared before the Chief Justice and Mr Justice Chapman to-day to show cause why be should not be committed. The application was in respect of with an order of the court for the payment of £3264 53 9d, the result of proceedings in connection with the Greenfields estate. The issue of the writ was authorised on the 10th L ebruary Mr Blait appeared for the Rose family, and Mr Treadwell for the defendant. In the course of argument it was mentioned that a medical affidavit had been lodged. In the affidavit Dr Hislop said he had been practising in We lington for 10 years, and had professionally attended Mr Macdonald at interval*, for several years, and particularly with reference, to U condition of health during the last three years. ,«.« During this latter period, added" Dr Hislop, "the defendant has shown mental and physical symptoms ot a serious character. Such symptoms have been as follows : ~,.,-. * "1. (1) Lass and unreliability ot memory; (2) apathy and losei- > of interest in his ordinary attaiw; (3) intermittent periods of slurring and indistinctness of speech; J9J a condition of continual drowsiness, which causes him to fall asleep in circumstances where a person in ordinary health would have every inducement to remain alert; (5) during the last session of Parliament I was informed, and believe, that the defendant, while conversing with another member, of the Legislature, suddenly became flushed in the face, and fell back in hie chair and remained unconscious for a short period. This attack I believe to have been a slight apoplectic stroke, ot possibly a threatened attack of uraemia. (6) Repeated attacks of profuse nose 'bleeding. One such attack in which I jaw him had been preceded by a prolounced flushing of the face, drowsiness, And intense headache. (7) A physical examination shows abnormally and persistently high arterial blood pressure, some hypertrophy of heart-sounds, due to persistent high blood pressure, some degree of thickening and trotuosity of the arteries, and marked dilation of the capillary vessels of the skin, especially en the face. * " 2. These symptoms indicate that the defendant is sufiering from that form of chronic Bright's disease known as chronic interstitial nephritis. This disease usually develops insidiously, and with few or no symptoms, over many years, and by the time such symptoms as those abovementioned appear, the outlook as to health, or even as to life, is very grave, as the patient is subject to a risk of either of two serious complications. " 3. If the defendant is committed to prison a large amount of worry and mental distress will undoubtedly be entailed on him. Worry and mental distress invariably have a prejudicial influence on the disease from which he is suffering, and it is practicably certain that the symptoms of mental failure will be aggravated and the risk greatly increased. .- Dr ..Collins said he formerly attended the defendant, and was familiar with his condition of health at the present time, having seen him recently in consultation with Dr Hislop. He had read a copy of the affidavit of Dr Hislop, and concurred therein.

Mr Tread well contended that, the question, of liability could be considered, but tlirt Bench decided that the Appeal Court had adjudged that point, and all that Mx Tread well could do was to file a motion for discharge or the stay of the writ. The Chief Justice thought tliat as Mr. Maodonald was" in custody Mr Treadwell could not deal with the case in any other way. Mr Treadwell then contended that the jnedical testimony was a sufficient answer, but, Mr Blair urged that the court had no power to entertain a motion for discharge. Th'B court then adjourned till noon to allow Mr Treadwell to file a motion for discharge, Mr Macdonald remaining in custody. On resuming, Mr Treadwell contended that Mr Macdonald might file an affidavit showing that he had done his best to satisfy judgment, and that the state of his health would not permit of his serving a period of detention, and that under section 4 of the Judicature Act the court had discretion to stay the operation of a writ pending the filing of further affidavits re Macdona-ld's health.

.The Chief Justice said he thought the section referred to before the writ issued, and the Appeal Court had already decided against Mr Maedonald. Mr Tread well wished to deal with the general aspect of the case, but Sir B. "Stout told him that he should have done so at the Appeal Court hearing, as thev could not now question whether the writ should have been issued or not. Mr Blair said he knew of no case where a dishonest person so termed by the court had been discharged under such a writ on the ground of ill-health except in one instance —in 1885 —where the Home Secretary wrote to the court and an order of discharge was made without preiudice. The Chief Justice, in reply, s.aid that perhaps there was power for the court to suspend the operation of the writ without ©uch action being regarded as a discharge.

Mr Blair said if the court decided thev had no jurisdiction to deal with the application regarding ill-health, then suspension of the operation of the writ was out of the question. The Chief Justice said the court- had not made up its mind whether a stay of the operation of the writ would operate as a discharge. If it did operate as a dis-

charge the result would be that the proceedings would be at an end. The court thought there was a risk of that, and in order to consider the matter further and at the same time to put the defendant to no greater trouble than necessary and so that justice might be done the court decided that the defendant should remain in the custody of the sheriff until Tuesday morning at 10 o'clock, when the court would be able to say whether it would grant a stay of the operation of the writ and that'it would not be discharged. As to the second point —in reference to the health of the defendant—the court had not made up its mind as to whether that was a ground for discharge or not. It required further consideration iu order that the plaintiffs might oroduce evidence as to health. The court would adjourn that matter until Friday next, when the question would be discussed. The plaintiffs would have an opportunity of examining the defendant by medical experts and filing affidavits if they so desired. His Honor concluded by referring to the question of an examination of the defendant by the direction of the court. This question, however, would bo left open. In reply to Mr Blair, Mr Justice Chapman said the parties should close their evidence by Friday. It must be understood that'the defendant must make himself available to the plaintiffs' doctors.. Mr Treadwell: The results of his being •in custody might be serious. The Chief Justice: We cannot run any risk in a thing like this.