1838. BATEMAN V. DUNN. THE Defendant was arrested on the 13th of Sep- s. 7. The Plaintiff resisted the application, and sought to detain the Defendant under the proviso of the above section, on an affidavit that the action was brought on a bill of exchange accepted by the Defendant; that he was an Irish barrister, having no domicile in England; and that he was about to return to Ireland. The Defendant, in answer, deposed that he had no present intention of leaving England, and On the 13th of October, the order prayed for on the part of the Defendant having been made by Coltman J., Wilde Serjt. obtained a rule nisi to set it aside, on the ground that though the statute meant to release debtors from actual custody, it was not intended to deprive the creditor of any security of bail which he might have obtained before the statute came into force; and that at all events the Plaintiff's affidavit shewed a sufficient ground for detaining the Defendant under the proviso of the seventh section. Sir F. Pollock, who shewed cause, contended, that as the Defendant would clearly be entitled to his discharge if in actual custody, it could not have been the intention of the legislature to put the bail to the expense Nov. 8. 1. Defendant having been arrested, and having put in special bail in September 1838, the Court entered an exoneretur on the bail piece, under 1 & 2 Vict. c. 110. s. 7. 2. An affidavit for the holding to bail, or de detention of a party under that statute, must state the deponent's belief that Defendant is about to leave England un less he be forthwith apprehended, and the facts on which such belief is grounded. 1838. BATEMAN V. DUNN. and trouble of a render which would be fruitless; that the Court, therefore, would enter the exoneretur at once, as in the case of the bail of a bankrupt who had obtained his certificate: and as to the detainer, the Plaintiff should have stated the grounds on which he believed that the Defendant was "about to quit England, unless he were forthwith apprehended." The statute ought to be construed liberally in favour of debtors. Wilde. The Court will not, to the injury of creditors, go beyond the express enactments of a statute of questionable policy; and there is nothing in it which expressly authorises the order in question. The case of the bankrupt affords no analogy, for he, by his cerficate, is discharged from all demands at the suit of his creditors; whereas this Defendant still remains liable to the full amount of the Plaintiff's claim; and the application does not appear to be made on the part of the bail. At all events, the Plaintiff's affidavit is sufficient to warrant the Defendant's detention under the proviso of the seventh section; for it has been shewn, as required by the third section, "that there is probable cause for believing that the Defendant is about to quit England, unless he be forthwith apprehended." He is a barrister; his residence is in Ireland; and the arrival of term renders his presence in that country essential to the carrying on his business. TINDAL C. J. This application involves two points: the first, general, and most important; namely, whether the Judge was authorised to make this order; the second, affecting only the particular case, upon the question, whether, according to the matter disclosed in this affidavit, there was ground for detaining the Defendant under the proviso in the seventh section of the statute. If I felt any doubt, I should reserve for further consideration the first point urged on the part of the Defendant; namely, that where a party has been arrested without being committed to prison, the seventh section of 1 & 2 Vict. c. 110. does not apply. This resolves itself into two questions; first, whether the Court would discharge a person who had been rendered by his bail after the 1st of October: and, secondly, whether, if he were liable to be rendered, they would enter an exoneretur on the bail piece. With respect to the first; if a party were not in prison on the 1st of October, but were afterwards rendered by his bail, I think it is provided for by the seventh section, which enacts, "that every prisoner who at the time appointed for the commencement of this act shall be in custody upon mesne process for any debt or demand, and shall not have filed a petition to be discharged under the laws now in force for the relief of insolvent debtors, shall be entitled to his discharge upon entering a common appearance to the action." It may be said, that, according to the very letter of the act, he was not, in such case, a prisoner at the time appointed for the commencement of the act: but the words are, "shall be in custody for any debt," and I am not prepared to say that under an act which proposes to abolish imprisonment for debt, the word custody might not include custody of bail: it is not necessary, however, to resort to that mode of construction, because, under an act for the general discharge of prisoners, it would be a strange thing to say that one set are liable to be detained, while others are discharged under the royal proclamation. Sitting here as judges, we have nothing to do with the policy of the act; we must administer it according to the intention of the Legislature: and that brings us to the second question, whether the Court power to enter an exoneretur where no render has has 1888. BATEMAN ย. DUNN, 1838. BATEMAN v. DUNN, been made. Now as the bail are authorised to render the Defendant, it would be inconsistent to deprive them of the benefit of an exoneretur in the first instance, when they may obtain it by the circuitous course of an actual render: it is immaterial whether the application is made by the bail or the party: and we are borne out in this course by analogy to that which has always been pursued in the case of bankrupts who have obtained their certificates. See Barnes's notes, 104. I am unable to see any palpable distinction between that case and the present, except that here the Defendant must enter a common appearance. On the general question, therefore, I think the learned Judge had authority to make this order. The second point is, was there sufficient ground shewn in this affidavit to detain the Defendant under the proviso of the seventh section, which, by referring to the third, enacts, "that if a plaintiff in any action in any of her Majesty's superior courts of law at Westminster, in which the defendant is now liable to arrest, whether upon the order of a Judge, or without such order, shall, by the affidavit of himself or of some other person, shew to the satisfaction of a Judge of one of the superior courts, that such plaintiff has a cause of action against the defendant or defendants to the amount of 201. or upwards, or has sustained damage to that amount, and that there is probable cause for believing that the defendant, or any one or more of the defendants, is, or are, about to quit England, unless he or they be forthwith apprehended, it shall be lawful for such Judge, by a special order, to direct that such defendant or defendants so about to quit England shall be held to bail for such sum as such Judge shall think fit, not exceeding the amount of debt or damages." The affidavit for detaining a defendant, therefore, ought to shew the belief of the deponent that the de fendant is about to quit England, unless forthwith apprehended; and the probable causes for his entertaining that belief: this affidavit is deficient on both points; and therefore the rule must be discharged. VAUGHAN J. I am of the same opinion; though I have felt some doubt in the course of the argument. The act should receive a liberal construction; and I think a party may be said to be in custody within the meaning of the act, who is, by intendment of law, in the custody of his bail. But with respect to the grounds for detention under the proviso of the seventh section, the belief of the deponent that the Defendant is about to leave England, unless he be forthwith apprehended, ought to be distinctly stated, and also the facts on which such belief is grounded. BOSANQUET J. I concur in thinking that the rule ought to be discharged: it is the duty of the Court to carry the act into effect in the spirit intended by the Legislature; and where the Defendant is out on bail, and the bail are entitled to render him, I think the Court may relieve them without putting them to the expense of a render. I should be disposed to think that a Defendant who has given bail, is a prisoner in custody within the meaning of the act; for the words of the seventh section are, not in prison, but in custody; whereas the thirty-fifth section, which relates to insolvent debtors, uses the expression "any person who shall be in actual custody within the walls of any prison:" but at all events, on a liberal construction of the act, where the bail are entitled to render the party, the Court may direct an exoneretur to be entered on the bail piece, to save the useless expense of an actual render. Then, with respect to the order for detention under 1838. BATEMAN บ. DUNN. |