IMPRISONMENT FOR DEBT ACT.

Evening Star, Issue 7429, 26 January 1888, Page 4

IMPRISONMENT FOR DEBT ACT.

The following important decision in the case of Shears v. Moffet was given in Chambers yesterday afternoon : Mr Justice Williams : The Imprisonment for Debt Abolition Act enables a plaintiff in any action in the Supreme Court iu which, if brought before the commencement of the Act, the defendant would have been liable to arrest under certain circumstances, to procure an order for his arrest. The first question, therefore, is whether the action is one in which if it had been brought before the commencement of the Act the defendant would havo been liable to have been a rested on memc process. New rules 458 and 459 of the old rules prescribed in what actions the defendant, before the passing of this Act, could have been arrested. Well, he might have been arrested in any action whatsoever for the recovery of money, whether the course of action was within the common law or the Chancery jurisdiction, and by rule 549 he might also have been arrested in an action for an account if the plaintiff had been prepared to swear that a balance was owing to him. It seems to me that an action for recovery of money was intended to mean an action where the plaintiff seeks for payment of money by the defendant to the plaintiff' himself—where ho, in fact, claims a debt or damages, whether that debt or damages be of a legal or equitable nature. Now, in the present case, the plaintiffs ask for the specific performance of a covenant of indemnity. They do not ask, as they might have asked, for damages for breach of covenant of indemnity. They have chosen to frame their action and prayer for relief in that particular way, and they must be bound by the way they have chosen to ask. If the terms of the prayer were granted as asked, the decree of the Court would be that if money were found to be due on the mortgage, the defendant should not pay to the plaintiff, but to the mortgagees. No doubt, so far as the interest is concerned, if it appeared that the plaintiff had paid interest to the mortgagee, the plaintiffs would be entitled to recover that interest from the defendant. It seems to me that it is only so far as the interest is concerned that the action can be designated a money action. It seems to me highly probable that the solicitor for the plaintiff's was aware of the difficulty he would have had if he had sued for damages on breach of covenant for indemnity before the plaintiffs had suffered any actual loss. To say the least of it, it is exceedingly doubtful from the cases before me whether if he had sued in that way he would have been entitled to recover more than nominal damages. Therefore there may have been good reason for bringing it as he brought it; and iu so bringing it is no longer, only in so far as the interest is concerned, an action for money under the old rule 458, and there is nothing in the statement of claim which states tho amount of interest which the plaintiffs claim to be entitled to. That, I think, shows that the plaintiffs do not in any way treat the action as a money action. Certain inquiries would probably have to be made, and the result might show that a small sum of money would have to be paid to the plaintiffs, but that is in no way the gist of the action. I think, therefore, that the action is not one of the kind on which before the Imprisonment for Debt Abolition Act the defendant could have been arrested on mesne process, and therefore he is not liable to be arrested under the Act, not even if interest was paid by the plaintiffs. But if he is liable to pay interest, as the order is conditional upon paying a large amount, beyond that the order would be bad. I think also that the objection taken by Sir Robert Stout—namely, that the order does not show that the plaintiffs will be materially prejudiced by the absence of the defendant fiom the Cohmy- is a fatal one. Paragraph 7 of the affidavit of Dr Martin is not a material one. Paragraph 8, on which the plaintiffs rely, states that they require him to prove the circumstances under which the transfer was made and the fact that he paid interest on the mortgage. It seems to me if it be necessary to prove these things that the plaintiffs would be perfectly well able to prove them themselves, and that it would be to their advantage rather than otherwise that a contrary account could not be given by the defendant. Paragraph 10 is a distinct affirmation on oath that the defendant had paid interest. Dr Martin, in the face of his affidavit, must be taken to speak of his own knowledge. He would therefore be able to testify to those very facts which he says the defendant should be present to prove. On the whole, therefore, I am satisfied that the order should not have been made, and should be rescinded. The order will be rescinded accordingly.