Sir Richard Couch, Kt., C.J.@mdashMr. Lowe, who opposes the application, said that there can be very little doubt that s. 273 of Act VIII of 1859 and the following sections, as well as s. 8 of Act XXIII of 1861, are the law on the original side of the Court, and regulate its practice. He said "very little doubt;" but there is no doubt that it is the law, and it has been constantly acted upon. The question we have to decide is what is the meaning of s. 273. Of course, in considering that, we must look also at the sections in Act VIII which follow it. It appears to me that the general design of these provisions is that a man is not to be needlessly and uselessly detained in prison.
2. Imprisonment is not to be arbitrary and capricious; there must be some object in it,--to oblige the debtor to make a full disclosure of his property, and to prevent him from fraudulently concealing property which might be taken in execution of the decree. S. 273 says that the person who is arrested, when brought up, may apply for his discharge "on the ground that he has no present means of paying the debt, either wholly or in part; or if possessed of any property that he is willing to place whatever property he possesses at the disposal of the Court." And he is to give "a full account of all his property of whatever nature, whether in expectancy or in possession." And s. 8 of Act XXIII of 1861, which is substituted for s. 274 of Act VIII of 1859, provides that "the Court shall examine the applicant as to his then circumstances, and as to his future means of payment, and shall call upon the plaintiff to show cause why he does not proceed against any property of which the defendant is possessed, and why the defendant should not be discharged; and should the plaintiff fail to show such cause, the Court may direct the discharge of the defendant from custody." Allowing that the word "may" is imperative upon the Court, and has, in fact, the same meaning as "shall," the discharge of the defendant from custody is only to be granted when, in the opinion of the Court, the plaintiff shall have failed to show such cause.
3. The question is whether the plaintiff here can be said to have failed to show cause. The only cause shown is that the defendant is holding an office, for his services in which he is entitled to receive a monthly salary. If he is not discharged and remains in prison, he cannot perform those services, and we may certainly assume that he would not continue to receive the salary; so that, if the cause shown is allowed to be sufficient, the salary will entirely cease. The fact of his being entitled to receive a salary which he can only get by being discharged is given as a reason that he should not be discharged. I cannot see that it is. When we consider what might follow on his not being discharged, and being committed to prison, it would seem that the Court ought not to refuse his discharge. He might, upon being committed to prison, apply under s. 280 for his discharge, and then he must give a full account of all property of whatever nature belonging to him, whether in expectancy or in possession, and of the places where such property is to be found. By s. 281, the Court, on such application being made, is to cause the plaintiff to be furnished with a copy of the account of the defendant''s property, and to fix a reasonable period within which the plaintiff may cause the whole or any part of such property to be attached and sold. If the plaintiff does not, within the time specified, prove that the defendant has been guilty of any of the acts there mentioned, he will be discharged. This section shows that the property intended by the former section is property which may be made available for the satisfaction of the debt,--which may be realized and sold. This being the state of things, and the defendant being able, if we were now to send him to prison, to apply for his discharge under s. 280, I think we ought not to refuse it under S. 273. It is a case in which there is not sufficient cause shown for not discharging him.
4. It appears to me that the scope of these provisions does not require that the defendant should be committed to prison for what would not be a legitimate advantage to the plaintiff. The Court would not allow a person to be imprisoned in order to oblige him to obtain money from other persons to pay the debt, and to incur a debt which he would be as little able to pay as the present. It will not aid in forcing other persons to take the risk of loss which is now the creditor''s. As we have not the power of giving the plaintiff any lien or charge upon the salary, or to secure to him a part of it in preference to any one who may hereafter attach it, we see no alternative but to declare that the defendant is entitled to be discharged if the other circumstances necessary are proved. Macpherson, J., will now take up the matter, and will also deal with the costs of this application.
Macpherson, J.
5. Having heard the matter fully discussed, I am of the same opinion as the Chief Justice.
Pontifex, J.
I am of the same opinion (1).
The defendant was subsequently examined as to his means before Macpherson, J., who, being of opinion that there was nothing in the defendant''s conduct to disentitle him to the benefit of s. 8, Act XXIII of 1861, ordered him to be discharged. The learned Judge, however, made no order as to costs.
