1904. Re HUNTINGDON. imprisoning a man on account of something which, if it is not a crime, is culpable misconduct. It is quite true that the subIsection of the District Courts Act, under which this writ was Walker J. issued, can only be used where the defendant has been adjudged guilty of culpable misconduct, but that does not, in my opinion, make the arrest under the writ itself a punishment for this misconduct. The position as I understand it is simply this: in the case of an ordinary debtor against whom judgment has been found, he has certain opportunities afforded him of paying the judgment debt before process will issue against him, but where a man has brought himself, as this man has brought himself, within sub-s. (a) of the 94th section of the District Courts Act, the Court is then in a position to say to him, "You are a fraudulent debtor; you are not entitled to any grace or consideration, and unless you instantly satisfy the debt, I will issue a writ of ca. sa. against you under which you will be imprisoned until satisfaction is made." It is quite true that to that extent culpable misconduct is punished, that is to say one who is guilty of it is liable to have issued against him a stringent and drastic process which is not available against his less culpable neighbour, but in my opinion a writ of ca. sa. is merely a civil process for enforcing a judgment. That being so, it does not seem to me that I can exercise a judicial discretion in this matter, by saying that the writ having been issued in the circumstances under which it was issued, there was such misconduct on the part of the debtor as requires me to refuse an application for his release. It is said that his conduct amounts, or may amount, to a crime for which he might be prosecuted and convicted criminally, but I know nothing about that. It may be so, or it may not, but as far as the matter is before me, I find that a debt has been fraudulently contracted followed by a judgment, and that again followed by a writ of ca. sa. So much as to the discretion of the Court to refuse a release under the Bankruptcy Act. Then as to the Judgment Creditors Remedies Act and the conditions which I can undoubtedly impose with reference to the release of this man : I feel great difficulty, as I pointed out to Mr. Windeyer, in imposing such conditions as that counsel suggested. It was at first contended that the condition should be the payment of this particular debt to these particular creditors. How the Court in its bankruptcy jurisdiction which is bound to administer estates equally for all creditors could impose a condition having the effect of preferring these creditors, I confess I cannot see. Then it was suggested as an alternative that at least I should require some security that payment would be made to the Official Assignee for the benefit of the creditors generally, but I think I would be flying in the face, as it were, of the intention of the Bankruptcy Act and the jurisdiction administered under it, if I entertained such a proposal. If this man has any property, by the act of sequestration it vests in his Official Assignee, and whatever he had for the payment of his debts can be exacted from him to the utmost farthing, in the bankruptcy jurisdiction. If on the other hand he does not possess any means, I do not see that I have any right to deprive him of the benefit of the Bankruptcy Act, in the hope that some other person who does not owe the debt may from compassionate or other reasons come forward and pay the money. I do not think I ought to act on any principles of that kind. It must be assumed that the Official Assignee, with the large powers he possesses, will exact from the bankrupt all that he is liable to account for, but further than that I cannot go unless some other case is made than that now before me. Under these circumstances I grant the application. Order accordingly. Solicitors for the judgment creditors: Perkins & Fosbery. 1904. Re HUNTINGDON. Walker J. 1904. March 14. Walker J. SULLIVAN ». THE ENGLISH, SCOTTISH AND AUSTRALIAN BANK, Equity suit-Application for jury--Practice. The Court will not, where the application is opposed, direct that the issues of fact in an Equity suit brought to set aside certain deeds for alleged fraud and misrepresentation be tried by a jury. THIS was an application by the plaintiff that all issues of fact arising in this suit be tried by a jury. The suit was brought to set aside certain deeds which it was alleged had been obtained from the plaintiff by the fraud and misrepresentation of the agents of the defendant bank. Sheridan, for the plaintiff, referred to Goodsell v. The National Bank of Australasia (6 N.S. W. W.N. 55). Gordon and Rich, for the defendants, were not called on. WALKER, J. I do not want to hear you, Mr. Gordon. This is one of those applications which I have had occasion to remark before cause embarrassment to a Judge because he is asked to say whether a matter which is in his Court for trial should be tried by himself on his own responsibility, or whether it should be tried, as far as issues of fact are concerned, by a jury under his direction. One's natural inclination in a case of this kind, if one only considered one's own ease and convenience, would be to put on the shoulders of a jury the responsibility which would otherwise rest on one's own; but one ought not to let considerations of that kind influence one in coming to a decision which must be on judicial grounds and in accordance with the rights of the parties. One party here, as in all cases where applications of this kind are made, is desirous of having a jury, and the other parties wish to have no jury, but prefer to have the entire matter decided by the Judge himself. Well, I have had to decide applications of this nature before both in the Probate and Bankruptcy juris * See Re Allen, post, p. 55. * 1904. SULLIVAN 1. THE ENGLISH, SCOTTISH AND AUSTRALIAN dictions, and I do not propose to refer to authorities as I have done on previous occasions, but merely to state in brief the conclusions to which I think the cases and the practice of the Court point. In Equity, Probate, and Bankruptcy, the normal mode of trial is by the Judge alone, and although in each of these jurisdictions power is given to the Judge to empanel a jury on BANK, LTD. the application of either party, it is in my opinion incumbent on the party who asks for a mode of trial which is an abnormal mode to make out a case for departing from the more usual practice. It is said that in Goodsell v. The National Bank of Australasia (6 N.S. W. W.N. 55), the then Chief Judge in Equity laid down that wherever in Equity there was an issue of fact not entangled by considerations of law, if either party asked for a jury, the Judge ought in such a case to grant one. The first observation I have to make on that case is that judgments reported in the Weekly Notes are not necessarily revised by the Judges who pronounce them, and it may be that the report cannot be trusted as altogether representing the views expressed on that occasion by the learned Judge; but however that may be, I greatly doubt whether his Honour intended to lay down any such general rule as has been contended for here by Mr. Sheridan. If he did intend to lay down so general a rule, it was, I feel convinced, in consequence of the view which no doubt was taken by the profession for some time as to what the Full Court meant when dealing with the case of Blunt v. Terry (5 N.S.W. W.N. 50); but that case was explained a great many years ago, and it has been well understood not to imply what at first it was taken to imply, so that I feel certain that if the then Chief Judge in Equity were now entertaining the application which is before me he would take the view I have expressed, that it lies upon the party applying to make out a case why a jury should be granted. I can see nothing in this case calling for an exceptional mode of trial, the issue raised as to whether certain documents had been obtained, as the plaintiff says, by fraud and misrepresentation, is one of the commonest issues tried in the Equity Court. Constantly suits of this nature are brought in order to set aside deeds which it is said have been obtained by some improper influence or misrepresentation. One might say there was hardly 1904. a more common form of case amongst the more serious suits SULLIVAN brought before the Court. It seems to me, therefore, that there v. THE SCOTTISH is nothing in the nature of the case which calls for the empanellENGLISH, ing of a jury. The plaintiff having failed to make out a case for departing from the normal form of trial, I must dismiss this BANK, LTD. application with costs. AND AUSTRALIAN Sheridan. I ask your Honour to make the costs costs in the cause, and to say that the application, in view of the absence of authority, was not an unreasonable one, and that the plaintiff ought not therefore to be punished for having made it. I do not object to the costs being defendants' costs in the cause. WALKER, J. My only difficulty is that I do not want to make an order as regards costs which will act as a precedent to encourage parties to make applications of this kind in the belief that they may do so with more or less impunity. I am afraid that if I allow the costs to be costs in the cause similar applications will be made in many cases. I am inclined to think that if any person asks for what I have held to be an exceptional mode of trial he must be taken to make it at his own risk as to costs. Sheridan. This matter has not, apart from Blunt v. Terry and Goodsell v. National Bank of Australasia, been reported in Equity before. WALKER, J. I feel that there is some force in Mr. Sheridan's remark that this matter has not previously been expressly dealt with in any reported case. I think I will be somewhat more lenient in the matter of costs than I proposed to be, and make them defendants' costs in the cause. Solicitors for the plaintiff: Ellis & Button. Order accordingly. Solicitors for the defendants: Fisher & Macansh. |