Tanaka et al. v Russell

The defendant was arrested while attempting to leave the province, due to his being indebted some $2,620.00 to the plaintiff. The defendant’s lawyers offered a special bail to the plaintiffs if he would be permitted to depart the jurisdiction; the defendant then took out a summons to set aside the writ of capias that the plaintiff had had him arrested under, arguing that the writ was “irregular and void” as it was “improperly granted on insufficient material.” (26) This summons was dismissed as “wrongly entitled”; it was asserted that the summons should have been heard in Chambers at New Westminster. (25) The defendant issued a second summons on “the same grounds,” and, once again, it was stated that the summons ought to have been issued at New Westminster, not Vancouver. Justice Irving also dismissed the summons application, with costs, stating that it was “immaterial... whether the writ was a nullity or not,” (26) as the defendant had given a special bail, thereby waiving his right to object to the writ of capias.