1876 debtor guilty of the offences mentioned in ss. 12, 13, and 14. But in each case the sentence once pronounced is final; the power once exercised is exhausted: and this is shewn by the last line in s. 23,-"so that he be not twice punished for the same offence." And this view is fortified by the provision in the last clause but one of s. 5, that "no imprisonment under this section shall operate as a satisfaction or extinguishment of any debt or demand or cause of action, or deprive any person of any right to take out execution against the lands, goods, or chattels of the person imprisoned, in the same manner as if such imprisonment had not taken place." It is true that s. 5 contains a provision enabling the Court to direct a debt due from any person in pursuance of any order or judgment of that or any other competent Court, to be paid by instalments, and from time to time to rescind or vary such order; and each instalment would thus become a separate debt in respect of which the debtor might, on default, be committed for forty-two days. But, however hard that may seem, the legislature has so enacted. The antepenultimate clause of s. 5 provides that "this section, so far as it relates to any county court, shall be deemed to be substituted for 88. 98 and 99 of the County Court Act, 1846 (9 & 10 Vict. c. 95), and that Act and the Acts amending the same shall be construed accordingly, and shall extend to orders made by the county court, with respect to sums due in pursuance of any order or judgment of any Court other than a county court." The 103rd section, which is dependent upon the two sections referred to there, was evidently omitted there by mistake; for, it is re-enacted in the penultimate clause with the omission of these remarkable words,-" or protect the defendant from being anew summoned and imprisoned for any new fraud or default rendering him liable to be imprisoned under this Act." Sect. 103 of 9 & 10 Vict. c. 95, however, is now repealed by the County Courts Act, 1875 (38 & 39 Vict. c. 50), sched. C. This question was raised in a recent case in this Court of Horsnail v. Bruce (1); and, though not absolutely necessary to the decision of the precise matter before them, two of the judges expressed themselves strongly opposed to the notion that there can be a second commitment for the same default. Bovill, C.J., after observing upon (1) Law Rep. 8 C. P. 378. EVANS V. WILLS. 1876 EVANS v. WILLS. "The the several enactments bearing upon the question, says (1): result is, that, if there be a liability upon a judgment or order to pay a debt, the neglect to comply with it constitutes one default only, and not a continuing default; and, there being no provisions in the Debtors Act for a continuing default, the omitted words of s. 103 of the Act of 1846 are wholly inapplicable. Sect. 5 of the Debtors Act, 1869, provides that, 'for the purposes of this section, any Court may direct any debt due from any person in pursuance of any order or judgment of that or any other competent Court to be paid by instalments, and may from time to time rescind or vary such order;' and there is a further proviso at the end that 'any person imprisoned under this section shall be discharged out of custody upon a certificate signed in the prescribed manner (2) to the effect that he has satisfied the debt or instalment of a debt in respect of which he was imprisoned, together with the prescribed costs, if any.' Under that clause, to my mind, upon each case of default in payment of an instalment, there would be a fresh default and a fresh power of commitment for such default. In substance, the limitation of the power of the county court judge to commit for default in payment of any debt or instalment, is provided for by the first part of s. 5, 'not exceeding six weeks or until payment of the sum due.' If this were not so, this extraordinary and absurd consequence would follow, viz. that a judge of a county court would have a power of repeated commitment for the same default, whereas a judge of a superior Court has no such power. The conclusion I have arrived at is, that s. 5 authorizes one commitment for a period not exceeding six weeks for one default: and that, where the order is for payment of the debt by instalments, the party may in like manner be committed for each default. Here, the judge having made an order for the commitment of the defendant for one default in payment of the whole debt, I am of opinion that he had no jurisdiction to issue a second for the same default, and therefore that the prohihition should go." And Brett, J., says that s. 5 of the Debtors Act, 1869," in terms applies to one order and one default only." The other two judges, Grove and Honyman, JJ., though they declined to rest their judgments upon this point, did (1) Law Rep. 8 C. P. at p. 385. (2) See Form 9, Pollock & Nicol, ed. 1870, p. 843. not express any dissent from the view taken by Bovill, C.J., and Brett, J. E. Pollock, contià. Horsnail v. Bruce (1) is clearly distinguishable from the present case. There, the county court judge had committed the debtor for forty days for nonpayment of debt and costs under a judgment. The debtor having been arrested was discharged, after having been in custody for five or six days, by a judge of a superior Court on the ground of privilege, the arrest having taken place whilst he was returning from sessions, where ne had been attending as prosecutor and witness. The gaoler claiming to retain the warrant for his own protection, and the judge of the county court refusing to issue a second or duplicate warrant, a fresh judgment-summons was taken out, under which a second order of commitment for forty days for the nonpayment of the same debt and the additional costs was issued. And the Court held that the issuing of the second order of commitment pending the first was an excess of jurisdiction. The observations of Bovill, C.J., and Brett, J., were mere obiter dicta. In the present case, the defendant was committed for fourteen days. After the expiration. of the fourteen days, it was proved to the satisfaction of the judge that he was of ability to pay, and he still refused and neglected to pay, and therefore he was guilty of a continuing default, for which he was liable to a fresh commitment: see Re Boyce. (2) The commitment here is under process in the nature of execution, and not merely process of contempt: Ex parte Dakins. (3) [ARCHIBALD, J. The analogy of the writ of ca. sa. is against you. Once arrested, the debt was gone.] The warrant here was regular upon the face of it. There is no express provision to prohibit the judge to commit a second time for the continued default, provided the period for which the party is committed does not exceed forty-two days in the whole. COCKBURN, C.J. It is extremely difficult to understand the principle upon which this legislation proceeds. I can quite understand the legislature altogether doing away with imprison (1) Law Rep. 8 C. P. 378. VOL. I. (2) 2 E. & B. 521; 22 L. J. (Q.B.) 393. (3) 16 C. B. 77; 24 L. J. (C.P.) 131. 3 1876 EVANS WILLS. 1876 EVANS V. WILLS. ment for debt as a means of enforcing payment. But, if imprisonment be allowed as a means of obtaining payment, conditioned on the debtor's being able but unwilling to pay, then I do not see why there should be any limit to the duration of the period of imprisonment. If the man has the means of paying, and the object of the imprisonment is to compel him to pay, then it is difficult to discover why that imprisonment should not be coextensive with the contumacy of the debtor. That, however, is not the principle upon which this Act of Parliament proceeds. If it is to be treated as a punishment on the debtor for disobedience of the order of the court, I do not see any power in the Act to enable the county court judge to make a second order of commit ment for the same default. He may make an order for the commitment of the debtor for six weeks, or any less period; but, having once done that, he is functus officio. We cannot give the judge a power which the legislature has not conferred upon him. And this is in analogy to the old law. When a man was once arrested on a ca. sa., he could not if let out be imprisoned a second time for the same debt. It is true that where, under this Act, an order is made for payment of the debt by instalments, each instalment becomes a separate debt for default in payment of which a separate order of commitment may be made. This, no doubt, is somewhat anomalous; for the debtor may thus be imprisoned under repeated commitments for a whole year. But there is the enactment, and we must give effect to it. It does not, however, by any means follow that, where the debt is not ordered to be paid by instalments, there can be more than one commitment for the same default. I do not think the Act has given any such power. ARCHIBALD, J. In construing this Act, we must, I think, be guided by the old law. Under that, the debtor having been once arrested under a ca. sa., he could not be taken again; and, the creditor having taken the highest satisfaction known to the law, his remedy is altogether gone. Bearing that in mind, let us see what this Act of Parliament provides. By its title it professes to be an Act for the abolition of imprisonment for debt, and for the punishment of fraudulent debtors. Sect. 4 enacts, that, with the exceptions therein mentioned, "no person shall, after the commencement of this Act, be arrested or imprisoned for making default in payment of a sum of money." Then, & 5 enacts that, subject to the provisions hereinafter mentioned, and to the prescribed rules, any court may commit to prison for a term not exceeding six weeks or until payment of the sum due, any person who makes default in payment of any debt or instalment of any debt due from him in pursuance of any order or judgment of that or any other competent court." The question is whether an order of commitment may be made more than once for the same debt. The proviso in s. 5 seems to me only to have altered the law to the extent that is expressed: it gives no authority to commit "from time to time." I do not therefore think the judge had any power in this case to make the second order of commitment. He must exercise the authority given to him once for all. The second proviso in s. 5 imposes (amongst others) this restriction upon the judge's power, viz. that "such jurisdiction shall only be exercised where it is proved to the satisfaction of the court that the person making default either has or has had since the date of the order or judgment the means to pay the sum in respect of which he has made default, and has refused or neglected, or refuses or neglects to pay the same." And it contains this further enactment, that, "for the purposes of this section, any court may direct any debt due from any person in pursuance of any order or judgment of that or any other competent court to be paid by instalments, and may from time to time rescind or vary such order." Thus, there may be a fresh imprisonment for default in payment of each instalment. Then it is provided that "no imprisonment under this section shall operate as a satisfaction or extinguishment of any debt or demand or cause of action, or deprive any person of any right to take out execution against the lands, goods, or chattels of the person imprisoned, in the same manner as if such imprisonment had not taken place." From that proviso I draw an inference different from that drawn by Mr. Pollock. But for that proviso, the imprisonment would have operated as a satisfaction of the debt, even as against the goods of the debtor. Although the 1876 EVANS บ. WILLS. |