SUPREME COURT, DUNEDIN.

Western Star, Issue 969, 1 August 1885, Page 3

SUPREME COURT, DUNEDIN.

At a sitting of this court on Wednesday, before his Honor Mr Justice Williams, the case of Andrews v. McCulloch was heard. This was an application for a writ of prohibition to restrain the Resident Magistrate at Invercargill from proceeding further with an order made by him upon a “" ■judgment summons upon the present Applicant. Mr Jas. Smith (instructed 'by Mr F. P. O’Reilly) appeared for the applicant. There was no appear- ■ nance of the other side. It appeared ■ that the present applicant, Andrews, had been served with a judgment summons in the R.M. Court held at :: Riverton by the respondent. When the summons came on for hearing both parties appeared, but it was then • contended on behalf Andrews that the application for the judgment summons had not been properly signed by 'the judgment creditor, and that, :t! therefore, the R.M. (the present respondent) had no jurisdiction to hear case. The R.M. derided that that objection had been waived by the appearance of the judgment debtor, Andrews, and proceeded to hear the [' case, and made an order against Ann. drews. , . . n His Honor remarked that the tacts were not stated very clearly in the f case stated for the opinion of the Court. If a judgment creditor ap■i peared at the hearing of a judgment Jil ,summons taken out by his agent that '"would ratify the agency. ' " Mr James Smith then proceeded to u.afgue in, support of the application for a writ of prohibition, citing section G of “ The Imprisonment for Debt Abolition Act, 1874,” and the case of Howard v. M'Beath, Macassey’s Reports, :Vi ;6 °Hi3 Honor then delivered judgment " as follows: — , , , • t•' ip] ie gth section ol (f The Imprisonment tor 5 iOebt Abolition Act, 187 G.” gives a judgmentcreditor Hie right to obtain from the registrar " ’o? the .Supreme Court, or from the clerk ot a Magistrate’s Court, a summons calling upon a n -judgment-debtor to appear and bo examined ■■ l n pursuance of the Act. Nothing is said in '‘" J the Act as lo the steps which it is necessary for the judgment-creditor to take in ovler to obtain this summons. The Gth section gives the judgment-creditor simply the absolute right to obtain it. That seems to me to distinguish the case from the ease of Howard v. 1 ! M‘Beath ; because althoigh, of corns?, some formal steps must be necessary to enable the summons to be obtained, yet the Act itself prescribes no s'ops at all, nor does it require that any particular procedure shall be a ■ : condition precedent to the issue ot such a summons. All that the Act does presmoo is that by section 18, general rules and orders G may be made by the Governor for me purpose of carrying the Act into effect, Ihot is to sav. that as some formal steps nro of course n'ecessarv in order lo enable the summons to be pot, that wbat those steps arc n • t 0 bu prescribed by ihe Governor ns a matter of mere procedure. The Governor, in pursuance of the Act, made regulations, which appear in the Gazette of 30th October 1874 and the third regulation provides that an application for a judgment summons is to ■ be in writing and signed by the applicant or his agent, according to the form m the schedule. The application in the present case was signed “H. Mainland, per 1. G. ; Mainland being the judgment creditor, ihe summons was issued in accordance with the i application. The judment debtor, Andrews, appeared at the hearing of the summons, and it Is to be presumed that the judgment ci edi- . tor appeared also. It seems to mo that the fact of the judgment creditor having ap- ' pefrc?at he hearing shows that the apphcation was made with his authority Ihe defendant also was before the magistrate, and under these circumstances I see no reason at all why the magistrate should not have mocecdod to hear and adjudicate upon the summons, as he did adjudicate. It seems to ’ me that the rule is directory only, and is sufficiently complied with if it appear that v thSplication was signed by some person on bohaffof the judgment creditor,and that at any rate there was no want ot jurisdiction on the part of tho magistrate to hear and dctci - - mine the case. The application will be dismissed.- 11 Otago Daily limes.