OF AUSTRALIA. (HIGH COURT OF AUSTRALIA.) APPELLANT ; DEFENDANT, axp é ; RESPONDENT. PLAINTIFF, ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES. Cu. sa.—Jurlgment aginst defendant in action for defamation—Defendant 4 6, op a. tile bankrupt on petition of plaintiff—Blection of remedy against goods of 1905. | Witor—Joinder of other causes of action with one for defamation—Consolidation ef Statutes—Bankruptcy Act (N.S.W.), (No. 25 of 1898), sec. 10(3)*—Defama- sypxev, tion Act (.S.1.), (No. 22 of 1901), sec. 24+. , 23, Sec, 24, sub-see, (1) of the Defamation Act (N.S.W.) 1901, which provides (iter atin) that 'no law now or hereafter in force for the relief of insolvent debtors... shall be construed to extend to affect or discharge from his liability any defendant indebted " for any damages in an action for publishing 'defamatory words, refers to Statute law only. 'The common law doctrine, that _ 4 judgment creditor may be concluded by his election as to the method of execution to which he will have recourse for the satisfaction of his judgment, isnot affected by that section. O'Connor JJ. _ Therespondent, who had obtained a verdict against the appellant in an __tetion for defamation and breach of contract and, had signed judgment for the 7 *8ec, 10, sub-see, (3) of the Bank- tupey Act (N.S.W.), No. 25 0f 1898, is ti follows :— Sec. 24, sub-see. (1) of the Defama- 'Act (N.S.W.), No. 22 of 1901, is as follows :— () After a sequestration order has tae, except as directed by this Act, no creditor to whom the debtor is inrespect of any debt provable ankruptey shall have any' remedy uthe property or person of the in respect of the debt, or shall ee or take any fresh step in any or other legal proceedings unless leave of the Court and on such as the Court may impose." (1) Nolaw now or hereafter in force for the relief of insolvent debtors, or for the abolition of imprisonment for debt, shall be construed to extend to affect warge from his liability any de- it indebted for any penalty, dam- ages, or costs adjudged against him in any proceeding, either civil or criminal, for the printing or publishing of any blasphemous, seditious, or defamatory words or libel." B.C. oF A. 1905. — Fereis a Marrs, HIGH COURT smount of the damages and costs, presented a petition in bankrupt sequestration of the appellants estate, and, an order having ben me sequestration, proved as x ereditor for the full amount of the judgment, then procured the arrest of the appellant on a writ of capias ad satis for the amount of the damages recovered on the count for defamation, Held, that the proceedings in bankruptey were in the nature of anex against the goods of the judgment debtor, and that the respondent thereby irrevocably determined her election as to the form of afterwards, while the bankruptey was still pending, having execution against the body of the debtor. Ex parte Wilson, 1 Atk., 152; and Miller v, Parnell, 6 Taunt., 870 foll Nicholls v. Rosenfeld, 7 N.8.W. L.R., 322, distinguished. Per Grifith C.J.—Sec. 10, sub-sec. (3) of the Bankruptoy Act 1898, provides that no creditor to whom a bankrupt is indebted in respect of a provable in bankruptcy shall have any remedy against the property or pen of the bankrupt in respect of the debt unless with the leave of the Bankr Court, is not necessarily inconsistent with sec. 14 of 11 Viet. No. 13, butm be read as not extending to the case of a defendant indebted for damage an action for defamation, and therefore re-enactment of the latter section in sec. wholly satisfied, the liability of the defendant for the balance contin by virtue of sec. 24 of the Defamation Act 1901, and the judgment has the same choice of methods of execution as before the bankruptcy. 287; 22.N.S.W. W.N., 90, reversed, and decision of A. H. Simpson N.S.W. W.N., 52, restored, but on a different ground. Appear from a decision of the Supreme Court of New Wales: Martin v. Ferris, (1905) 5 S.R. (N.S.W.), 287; 22.NS) WN,, 90. The respondent in September, 1904, brought an action the appellant for slander and wrongful dismissal, and obiaine verdict on both counts, £500 on the first, and £30 on the secon OF AUSTRALIA. the respondent issu pay the amount of the judgment. 'The notice was not com- 'iad with, and the respondent thereupon filed a petition in aptey against the appellant, alleging as the act of bankruptey sn-compliance with the notice referred to, A sequestration jas made against the appellant, and the respondent proved creditor in the bankruptey for the full amount of the judg- nt with interest. In April, 1905, the respondent sued out a it of capias ad satisfaciendum in respect of the judgment on slander count for £500, and the appellant was arrested under writ. On April 10th, 1905, the appellant took out a summons to set side the writ of capias on the grounds :—That the leave of the Judge in Bankruptcy had not been obtained before the issuing of be wit as required by sec. 10, sub-see. (3) of the Bankruptey Ad (NSW.) (No. 25 of 1898); and that, by taking the proceed- ws to have the estate of the appellant sequestrated in bankruptey, 'andy proving in the estate for her judgment debt, the respondent had elected to rank with the other creditors and to satisfy her judgment debt in that manner, and could not lawfully thereafter sue out a writ of capias ad satisfaciendwm nor arrest the appel- lint under such writ. The summons was dealt with by 4. H. Simpson J., sitting in Chambers, who held that the writ had been jmegularly issued, inasmuch as the leave of the Judge in Bank- 'tuptey had not been obtained, and ordered that it be set aside "and the appellant discharged from custody: Martin v. Ferris (1). | From this decision the respondent. appealed to the Full Court tohave the order of A. H. Simpson J., set aside, on the ground that His Honor was in error in holding that the leave of the Judge in Bankruptcy was necessary, and in setting aside the writ that ground. The Full Court granted the application and set 'side the order appealed from. 'They were of opinion that see. of the Defamation Act (N.S.W.), (No. 22 of 1901), was incon- sient with the provisions of sec. 10 of the Bankruptcy Act 1898, tnd operated as a repeal of them to the extent of the inconsist- tey, and that therefore the proceedings in bankruptcy did not debar the respondent from exercising her remedy against the (1) (1905) 5 S.R. (N.S.W.), 287 N.S.AW. WN, 5 ed a bankruptey notice calling on the appellant H.C or A. 1905. = Ferris Mal 523, H.C. oF A. 1905. 'FERRIS Marrs. HIGH COURT person of the judgment debtor: Martin v. Ferris (1) From this decision the present appeal was brought, Armstrong, for the appellant. See. 24 of the Defamation 1901, should not be construed as a total repeal of sec. 10 (B)ott Bankruptcy Act, 1898, if any other construction ig possible. j it isa repeal it is only by implication, and therefore the (om should endeavour, if possible, to read the two Acts in such a way as to give effect to both. The Bankruptey Acts were passed jo 1887, 1896 and 1898, after the date of the original Defana Act (11 Viet., No. 13), and were intended, inter alia, to special provision for the case of all defendants indebted fw damages, who became bankrupt. The words "now or here in foree," in the Act 11 V: . 13, s. 14, could not affect t validity of special provisions in the later Bankrupley Aets, Bankruptey Acts left the Defamution Act in foree, subject limitations. Sec. 44 (3) of the Act of 1898, dealing speci with the case of defendants indebted for damages in actions of libel and slander, shows that it was the intention of the legis ture that that Act should be read as a qualification or limitation: the Act 11 Vict., No. 13. The two Acts then could be read togethe without inconsistency, one being a proviso to the other, 'Theta of the Defamation Act being consolidated after the Bankrupt Acts should not afford a presumption that the legislature intentel to alter the law. The words "shall be construed to extend to affect or discharge from his liability" are capable of a con tion consistent with sec. 10 (3) of the Bankruptcy Act. The latter section does not purport to discharge from liability. merely places the bankrupt defendant under the control of Tudge in Bankruptcy. Sec. 24 of the Defamation Act 1901 not be intended to take such a defendant altogether ont of th operation of the Bankruptey Acts, which would be the cms quence of literal construction of the word "affect." Asa limited construction must be adopted, that construction is the proper which leaves the section of the Bankruptey Act 1898 some though a different conclusion might possibly have been arrive if the Defamation Act 1901 had been a new enactment, and not (1) (1905) 5 8.R, (N.8.W.), 287; 22.N.S.0V. WAN, 90. : OF AUSTRALIA. consolidation. Such a construction is to be found by reading Defamation Act 1901, see. 24, as a provision that, notwith- nding bankruptcy, the liability of the defendant remains wmafficted, but during the bankruptey, the terms of the Bank- pley Act 1898 are to apply, and the judgment creditor must ection and with the leave of the Judge in Bankruptcy. Court may take cognizance of the fact that the Defamation 4: 1901 isa consolidation, and therefore not to be presumed to the law, especially in its general provisions: Williams v. itehard (1), Apart from the question of repeal, the words "law for the lef of insolvent debtors " do not include a law which enables | pattioning ereditor to make his debtor bankrupt. The action in the present case was not within the meaning of the words a "proceeding, either civil oreriminal . . . forthe lishing . . . of . . . defamatory wordsor libel." The ikelaration contained a count for breach of contract in addition tothat for slander. Though the verdict distinguished between uptey. 'The arrest was for the £500 damages for slander only, the foundation was wanting, that they should have been ed in an action for slander or libel. A person exereising 'common Jaw remedy against the person must strictly follow nd it has always been held that in such cases the writ must ewith the judgment: Chitty's Archbold, 12th ed., p. 606; mith vy. Knapp (2); Amer. Encye. of Prac. and Plag., vol. [Pickbwrn, for the respondent—This point was not taken in he grounds of appeal.] _Lask leave to take the ground now. It was not argued before Full Court because that Court had decided in Nicholls v. 2) 80 N.Y.R., 581. 1905. — Pensrs v Maxers.- 0 eaters H.C. or A. Rosenfeld (1) that the objection that the writ did not 1905. HIGH COURT the judgment was not a valid one. Where there are two count the judgment is one and indivisible. They cannot be sepa for the purpose of arresting upon one. : The right to arrest is based upon common law, the Com having allowed a writ of ca. sa, in every case in which the end would have been entitled to a ca. re. Assuming this to have been an action for defamatory within the meaning of sec. 24 of the Defamation Act 19) the respondent had two methods of execution 'open to her, oy against the person of the debtor, the other against his goods. I has always been held in England that the two remedies eannoth ed concurrently. If the creditor elects to proceed against th Is, she may, by withdrawing the execution, have reeo execution against the person, but, if she elects to proceed i ruptey, and the debtor is made a bankrupt, she has determined election irrevocably, because the status of the debtor is chay by the bankruptcy, and the interests of other creditors are te The remedies are inconsistent, and the creditor must mak election between them: Ex parte Wilson (2); Ee parte Wari Ex parte Lewes (4); Cohen v. Cunningham (5); Waton Humphery (6); and cases cited in Chitty's Archbold, 12h vol. L, p. 708; and Chitty's Equity Index, 2nd ed. under Ban ruptey—Proof; Ex parte Cator (7); Ex parte Warder So long as the creditor has one execution in foree against th debtor's property, he cannot have another against the person. (Grirrimm C.J. referred to Miller v. Parnell (9); Dias Warne (10); and Andrews v. Saunderson (11).] Miller v. Parnell (9) was approved in In re A D Ex parte Smith (12). In several cases the Supreme Court of South Wales has expressed its opinion that the rule as to cet does not apply here, on the ground that in England the deei depend upon English Statutes. In that the Supreme Court h (8) 8 Bro. C.C.. 191. A i, 370. 3A; 2 Dow BB es BX., 2085 1H (8) 2413. Ex,, 190, (7) 8 Bro, 0.6.) 216. OF AUSTRALIA, ich provided that a creditor must be bound by his election; julit merely declared the law which had been in existence for roa years before 'The rule as to election is one of common ww,and is of very early date; there were many cases decided iefore the date of any Act dealing with election, all supporting the rule, They were not cited to the Supreme Court. In Be parte Gee (1); Webb v. Humphrey (2); and Webb v, Wilton (the question of election was not expressly raised, but the Court's decisions must have proceeded upon the assumption that the rule was not in foree. In In re G. R. Dibbs (4), the question yas raised, and the Court decided against the contention that by taking the body of the debtor under ca. sa. the creditor had deter- mined his election. 'The same point arose in Nicholls v. Rosenfeld (5), and the Court again decided that the rule as to election did tot apply. But the judgment ereditor in that ease was not the wtitioning creditor in the bankruptey ; he merely proved his debt against the estate. The case may be distinguishable on that ground, There is nothing in the Defamation Act 1901 to do "gay with the general rules of common law as to election of remedy, and, therefore, that case should, if necessary, be over- ruled. The Defamation Act (11 Vict. No. 10) gave no new remedy to the creditor, it merely suspended the effect of the relieving laws incertain cases. : (Gnirrirn C.J. referred to Cobbold v. Chilver (6). [He referred also to Wilson v. McIntosh (7).] Pickbwrn for the respondent. The point as to the form of the judgment, and the diserepaney between the writ and the judg- ment was not raised before the Courts below. 'The appellant has by his action practically abandoned the point, and should not be allowed to raise it in a Court of Appeal. (GrreiTH C.J.—The appellant is not limited to the grounds N.S.W. L.R.. 322. (5) 7 (6) 4 Man. & G., (7) (1894) 4.C,, 129, in error, 49 Geo, IIL, e. 121, s. 13, was the earliest of those H.C. or A. 1905. Penni Manns. 532 HIGH COURT H.C. oF A. argued in the Full Court, as long as the respondent is not 1905. judiced.] Fauis 'The respondent is prejndiced because thisis a mere imegu If the writ had been set aside on this ground the Judge have imposed terms upon the appellant. [GrirerrH C.J.—This is not a mere irregularity, but a 'Marrry. be allowed. By the Common Law Procedure Act 1899, sec, 49, a plai may join several counts and have judgment on them all, appellant is not in any way prejudiced, if the respondent is to abandon he respondent followed the case of Nicholls v. Rosenfeld (2), whith covered this very point, and, if that case is now over-ruled, n costs should be allowed the appellant, or, if costs are allowed, the respondent should be allowed to set them off against her vel [GrirrrrH ©..—If the Supreme Court of New South Wales holds that it is the practice of the Court to issue execution in that way we cannot say that they are wrong.} As to the effect of the Defamation Act upon the Bankruptey Acts, the Supreme Court held in 1886 that, as the law then stood, defendant indebted for damages in an action for defamation was still liable to imprisonment. The legislature having afterwart re-enacted in identical terms the earlier Statutes, it must betaken that the Supreme Court rightly interpreted them, and that the intention of the legislature was that the law should remain a interpreted: Saunders v. Borthistle (3); Nolan v. Clifford (Hy The old Insolvency Act 5 Vict. No. 17, by secs. 30 and 32, in effect provided that if a man, who was in gaol under a writ of ei judgment on the other count and the costs (3) 1C.LR., 379, at p. 300. (4) 1C.L R., 429. CLR] OF AUSTRALIA vent for debt did not apply, sequestrated his estate, he was entitled ig his discharge from custody. If he so escaped, no further lings could be taken under the writ. Then the Defama- n Act (11 Viet. No. 13) by sec. 14, altered the law by providing, inter alia, that defendants indebted for damages in an action for defamation should not have the benefit of the Insolvency Act nongst others. It was so decided by the Supreme Court in the 'aws cited. Sec. 4 of 37 Viet. No. 11 allowed such defendants to ~ have the benefit of the Insolvency laws after twelve months in astody. The Bankruptey Acts, finally consolidated in 1898, _ psibly restored the law to the condition in which it was before the Defamation Act (11 Vict. No. 13), though that has been ubted: (per Manning J. in Re Goode (1),) and later still, in 1001, the Defamation Act 1901 repeated the process and restored to foree the law as it existed immediately after the 11 Vict. Yo. 13. This is the clearest indication of the intention of 'the legislature. Sec. 24 of the Defumation Act 1901 must be tiken to have impliedly repealed secs. 10 (3) and 44 (3) of 'the Bankruptcy Act 1898. The words are plain. The words 'tow or hereafter in force" must mean in or after 1901. They cannot be dated back to 1848 as was contended below. he use of the word "hereafter" may possibly be beyond the - power of the enacting body, and may only have effect as pre- _ Nanting any subsequent repeal by implication, but that does not weaken the meaning of "now." Sec. 10 (3) is a law for the 'lef of insolvent debtors, tending to interfere with the common _ law right of execution against the debtor's body. See. 24 says tat such a law "shall not be construed to extend to affect or fscharge from" liability. 'The only possible construetion of that San implied repeal of sec. 10 (3) of the Bankruptey Act, if the 'Mer section is capable of being applied to the case of a defendant 'Tanaction for defamation. If the legislature had intended that the Defamation Act should not operate as a repeal of the Bank- iley Act, so far as the two were in conflict, it could have been provided, as in the consolidated Matrimonial Causes Act 1899, h Act, by see, 88, sub-sec. (3), provides that the Act should not (Q) 1 B.C. (N.S.W), 9. You 1, - respect of a tort to which the laws for the abolition of imprison- B.C. oF A. 1905, Ferris ®. Maxis. an H.C. or A. be taken to repeal or affect the operation of the Bau 1905. June 27. HIGH COURT "Jaw for the relief of insolvent debtors," within the m see. 24 of the Defamation Act. "Law" includes the com law. may have a particular application to the relief of bankrupts, that would not bring it within see. 24, Grurriru C.J.—Itis not a law for their relief, though it for their benefit. "Law" in this Statute must surely mean Statnle law.] The section is equally applicable to common law. ichsils Rosenjeld (1) was right on this point. The fact that the jul ment ereditor was herself the petitioning creditor does not alt the position. [Grirrira C.J. referred to Cassidy v. Stewart (2)). Armstrong, in reply, referred to Re Martin ; Ex parte Th Commissioners of Taxation (3); Clarke v. Clarke (A) Goode (5). Cur, adv, walt, satisfaciendum, sued out by the respondent against theap should be set aside, and the appellant discharged from The writ of ea. sa. was issued in an action in whieh the re ent had recovered against the appellant a verdict of £500 dam for slander and £30 for breach of contract. 'The application t=! to notice two only. The first was that the writ was is and the appellant arrested without the leave of the Suy Court in its Bankruptey jurisdiction, and the second tht # respondent had procured the sequestration of the appellants est in bankruptey upon her judgment debt. (9.2 BR (N.8.W.) 585 138 w ) 1 B.C, (N.S.W.) OF AUSTRALIA. tewrit on the first ground. 'The Full Court was of opinion that fixt ground was not tenable, having regard to the Statute law as jtnow exist and that the objection with respect to the Bunk- ypley Act was invalid, will deal briefly with the question as fpthe failure to obtain the leave of the Bankruptey Court before ing the writ of capias. 'That turns upon Statute law. By 'Act 11 Viet., No. 13, usually called the Defamation Act, it was wrovided in see. 14 that from and after the passing of that Act, 'n0 law which is now or may hereafter be in force" in New Snth Wales for the relief of insolvent debtors " or for the abolition ofimprisonment for debt shall extend or be construed to extend toaffiet or discharge from his liability any person who shall be inlebted for any penalty damages or costs adjudged against him jn my proceeding either civil or criminal for the printing publishing of any . . . defamatory words." 'Those are thematerial words of the section. It applied to future as well as 'toexisting law. I think that the word "law" in this section must 'Teread to mean Statute law. It in effect amounted to a limited applicable Like all Inter- ise requires." Reading it in that way, wal difficulty can arise, at any rate as to see. 10 (3) of the iimuptey Act 1898, upon which the objection with which I now dealing was founded. 'That section provides as follows : is Honor read the section and continued.] Reading these imo sections together the effect will be that sec. 10 of the Fuikruptey Act must be read as not extending to the case of 'defendant indebted for damages in an action for publishing [amuatory words. 'Thus read, there is no inconsistency between two Acts. It seems to have heen assumed that the Bankruptey eld in effect a repeal of sec. 14 of the Defumation Act MViet, No. 13), but for the reasons I have given I do not think Swesssiry to come to that conclusion, Later, in 1901, the \sIunderstand it, the learned Judge of first instance set aside H.C. oF A. . 1905. Grifith C3. . Defamation Act (11 Viet. No. 13) was repealed and HIGH COURT the provisions contained in see. 14 being re-enacted in seq Wa the Defamation Act 1901, in that respect leaving the law was before, A greater difficulty would arise under see, 44 4 the Bankruptcy Act 1898, which expressly deals with the cued debtors of this kind, and if a question arose under that section j might be contended with great force that the legislature, havin applied its mind to that particular subject, must be taken to excluded the application of the general provision containel see. 14 of the then existing Defamation Act. Whether unt those cireumstances, the Defwmation Act being re-enacted at date later than that of the Bankruptcy Act 1898, it would beled that the consolidation had or had not effected a change in law, is a matter which does not arise in this application, therefore not necessary to consider it. But there is as difficulty, and it would be much more satisfactory if the leg ture would solve it. For these reasons I do not feel at all by the contention that the respondent should have obtained leave of the Bankruptey Court before suing out the writ capias. - T pass now to the other objection, that the plaintiff was» entitled to issue a writ of ca. sa. because she had already mal the appellant bankrupt. Now, the respondent is standing upo her common law rights. She claims that the Statute law of Ne South Wales does not affect the case at all. I assume that is no other Statute law than that quoted to us which affects: That is a matter which may some day be argued. For th purposes of this case I assume that the supposed common lin right to issue a writ of eupias is part of the law of New Sa Wales, except so far as it has been taken away by the Ads the abolition of imprisonment for debt, which do not ext to cases of defamation. But if the respondent relies her common law right she must take that right with allt common law incidents that attach to it. Now those are well known. They are nowhere more clearly statel in the case of Miller v. Parnell (1) decided in 1815 by Court of Common Pleas. In that case the defendant Il (1) 6 Taunt., 870. CLR] OF AUSTRALIA. yas made for his discharge on the ground that the plaintiff jai previously sued out a writ of fier facias which had not yet 'yen returned. 'The contention was that it was a well-known that a plaintiff had the option of execution against the son or against the property of the debtor, but could not have If he took the first, execution against the debtor's person, he took out execution against the goods of the debtor, he s not debarred from afterwards levying execution against person, but he must first have completely got rid of the 'aecution against the goods. I will read the statement of the ion in that case, because it very clearly states the principle "aul the reason for it (1). "No doubt, a plaintiff having sued out mit of fieri facias, may, if he pleases, omit to execute the fieri fuias, and take out a writ of capias ad satisfaciendwm, and exeente that before the jiert facias is returned or returnable. But here is also no doubt that if the plaintiff does execute his fieri _fucius, he cannot have a writ of eapias ad satisfaciendwm till the i javias is completely executed and returned. 'This is a middle So far as the defendant is concerned, the goods, to the 'atent of their value, have been levied; and the question is, whether the plaintiff, after taking them, may change his mind, al sue out a writ of capias ad satisfaciendum without returning lisfonmer writ. If this might be, it would confer a power that night be much abused. If the fier facias be returned, there is ouething to bind the plaintiff, and to limit for how much he have the body, by showing how much he has already gotten Ita plaintiff might take goods under a fier' facias, and hold them month, or the greater part of the long vacation, and then change 'tismind, and say, 'I will not sell, but will take the body of the dant under a capius ad satisfaciendum, it might be the mgine of very great oppression. 'The plaintiff may, by the (1) 6 Taunt, 370, at p. 371. vntaken in execution under a writ of eapias, and an applica- H.C. oF A. 1905. — Ferris Magn Gritith 6.3, 538, H.C. or A. having so elected, he cannot use the other 1905. — Ferris Marris Gritith Cu. HIGH COURT Process, till after return of the first. We therefore think, that this writ of cap ad satisfaciendum, being sued out after the fri fuciashaa a and after the sheriff had taken the goods under it, and beng return, cannot be supported." 'The writ was therefore sat That was no new doctrine. It merely stated the re rule governing the plaintiff's right to levy execution aga body of his debtor. 'The authority of that case was distin affirmed by the Court of Appeal in Zn re A Debtor; Be py Smith (1). That, then, is the law to which the respondent: hj sought recourse. Now that decision applies in terms ony writ of sierd facias, but long before that, the effect of taking goods by a petition in bankruptey by a judgment creditor come up for consideration before Lord Hardivicke LC. The f In that case the judgment creditor had first of all presente petition, procured a commission, as it was then called, in ban ruptcy, against the debtor, clearly stated in Miller v, Parnell (3). Another ease was dei in the same year by the same Lord Chaneellor: Be pi Ward (4). 'There the bankrupt was in custody at the st oth petitioning creditor and the assignees of the estate. The ale debt under the commission. 'The Lord Chancellor said (4):"7™ petition must be allowed as against the petitioning ereditor he has determined his election by taking out the eommissim but," he continued "there is no foundation to g (1) (1902) 2 K.B., 260. (3) 6 Taunt. 370. (2) 1 Atk., 15: (4) 1 Atk, 153. LR] OF AUSTRALIA, vyithstanding they are creditors of the bankrupt, yet as they sed to prove their debts under the commission, the barely ing assignees will not determine their election; for yyeam only be considered as creditors at lange, sinee they have 'not proved any debt." Then three years later, in the case of Ex uvte Lewes (I), the same Lord Chancellor said: " A petitioning editor cannot keep the bankrupt in gaol, because he has no ketion as a common creditor has; for if he was to elect to pro- eed at law, the commission must of course be superseded, which 'would affect those creditors who have proved under the commis- sin" That is to say, treating a petition in bankruptey as in thenature of an execution at common law, the creditor could det to abandon the execution against the goods and have lis execution against the body, but he could not do so in the "ws of bankruptey, because other persons were interested, and therefore he was held to have irrevocably determined his cketion. These principles are illustrated in authorities extend- ing over one hundred and fifty years, and from them it follows that a petitioning creditor, having irrevocably elected to have recourse to the goods of the debtor, cannot afterwards take the debtor's body in execution. The case in the New South Wales Court which was relied upon by the respondent, Nicholls v. Rosen- fd (2),is not in any way inconsistent with this decision. In _that case the plaintiff, the judgment creditor, was not the petition- ing creditor, but had proved in the estate. It is not necessary to 'iy whether that would or would not be sufficient to show that hehad determined his election. That is not this case. In this ta the respondent, by obtaining the order of sequestration has imevocably elected to have recourse to the debtor's goods, and she 'famnot now, according to the practice of the common law to which she has resorted, claim to have recourse also to execution against lis body. For these reasons I think the order of Simpson J. was right, though not on the same grounds, and that the order of the Full Court discharging it should be set aside, and that of Simpson J. restored, (Lath, 154, 2) 7N.S.W. LR, 322. shat the petition prays with regard to the assignees; for not- H.C. or a. 1905. eS. 'Ferris a 'Manns. Griien C3. H.C. oF A. 1905. 'FERRIS Mantis. Barton J. J. should be restored, and on the ground upon which the @ Justice has put it, namely, that the doctrine of election appli nized as good law to the present day, and is to my mind Fe clusive authority for the position taken up by the appellany It has been argued that sec. 24 of the Defamation Act affed relief of insolvent debtors." I cannot accede to that argumen It does not appear to me that the doctrine of election can bed the common law of England dependent upon principlesapplcabe to the whole range of the common law, and not simply to thee of insolvent debtors, and therefore it does not seem to me to matter intended to be dealt with by see. Act. Holding that opinion, and that being, so far as I ean se the main argument advanced by the respondent on this point, agree with His Honor the Chief Justice that that doctrine to this case; and that therefore there is no necessity for us t consider the question as to the form of the writ, or whether th leave of the Bankruptcy Court should have been obtained b issuing it. But it is as well to mention the difficulty as to th consolidation of the Acts, which has arisen from the fact that th Bankruptcy Acts were consolidated before the Defamation I cannot help saying that it would be much more satisfuetory ti the Courts and the public if this matter were cleared up by s0 legislation declaratory or otherwise, so that in any future proct ings a conclusion, which a large part of the community might think undesirable, might be avoided. It is quite possible =a I cannot say more than that—that owing to the transposition of these two branches of the Statute law which have consolidated, the Court may come to some conelusion, WI though clearly founded upon legal principles, may not be at al acceptable to laymen, because there are cases in which the inter (1) 6 Taunt., 370. OF AUSTRALIA. ich bind the Courts in the interpretation of Statute law, hile they may be aware that it is very improbable that the rtentions tobe deduced from the words used were those which fe legislature entertained when it adopted the course it did. I sow out these observations because it is well that attention should sn opportunity of preventing the rights of parties becoming jv port of legal principle in opposition to the real intention of who framed the law. "jyeause, in my opinion, the doctrine of election solves the whole ~ que, Tagree that the appeal should be allowed, and the order af Simpson J. restored. OCoxxor J. In the view I take of this case it is only necessary toconsider one of the grounds urged by Mr. Armstrong on "behalf of the appellant, namely, that the respondent, having made "weof her judgment to petition for an order for sequestration in "fankruptey against the appellant, having proved in his estate "and been classed as a creditor, cannot, while the bankruptey is _pinding, exercise this remedy of capias ad satisfaciendum. The Dyjamation Act gives no new remedy. It simply preserves the remedies which existed at the time of the passing of the Act "10Viet. No. 7, which, speaking generally, abolished imprisonment 'debt. 'The plaintiff's remedies in an action for slander are the sume as they were nearly fifty years ago, and the law regulating hem is to be found in the old books dealing with the exercise of and remedies against property and person commonly exer- sed in such eases. Now the rule of law as to election is avery old ue and arises out of the very nature of the remedies themselves. AnBacon''s Abridgement, 7th ed., vol. 111, p.393, it is put ii this may: "When the plaintiff has judgment, he has it in his election to Sueout what kind of execution he pleases; but he cannot regularly take out two different executions on the same judgment nor 'second of the same nature, unless upon failure of satis- fiction on the first." 'Then in a note reference is made to bal — Fennis Mannix, Barton 3. H. C.oF A. Miller v. Parnell, as reported in 2 Marsh., 78, and the 1905. Ferns Magnix. O'Conner J HIGH COURT continues : " Therefore, if the plaintiff, upon a judgment op nizance at common law, sues out an elegit, he can have no cap ad satisfaciendum afterwards to take the body, because he lay determined his choice by that writ to the goods and chatty a moiety of the land, which being entered upon the record thereby estopped; and though he takes but an aere of land execution, yet it is held a satisfaction of the debt, be it never great, because in time it may come out of it." In regard the to the remedy of legit or taking the land, it has always bien tie law that where a plaintiff elects to use that remedy, he cannot allowed to exereise the other remedy against the person same principle of election has also obtained with regard tothe use of the other remedy of fieri facias. In the case of Miller Parnell (1) to which my learned brother the Chief Justice h referred, it was pointed out that the remedy of taking the debtor on the writ to take the body can be exercised. From the nature of the writ of capias ad satisfaciendum it is app that the Courts in order to guard against abuse of process must exercise some control over those who seek to use it in satisfati ofa judgment. The writ is thus described in another pas in Bacon's Abridgement, 7th ed., vol. 111., p. 395, note (a): Statute of James . . . treats this however only as dot (referring to a decision that if a person taken on a eapias satisfaciendum died in execution, a plaintiff had no remedy) " for the body is merely a pledge for the debt; it is not in satisfaction, but ad satisfaciendwm. The debtor isp sumed solvent, and is therefore coerced of his liberty until he makes payment, Hisimprisonment is not a punishment, butm a means of getting at that property which he is supposed topos and fraudulently withhold. If he dies in prison without having surrendered his property, it is perfectly content with thispm ing that a new writ should issue attaching immediately upon property. The judgment of the Court, that he shall pay, i ill unexeeuted." 3 (1) 6 Taunt., 370. OLR.) OF AUSTRALIA. indy of the debtor that is deemed a satisfaction of the debt, and releases him he shall have for this reason, that if he voluntaril nofurther remedy. Of course if he is released by operation of Jaw, the plaintiff still has a remedy. That was the case in In re GR, Dibbs (1), in which it was held that, notwithstanding that the body of the debtor had been taken and held for the period prescribed by Statute, there was no. satisfaction of the debt, fecause the release was by operation of law, and not by the act ofthe parties. The doctrine of election has been similarly applied in thecase where the creditor has taken goods in execution. His Honor the Chief Justice has referred to Miller v, Parnell (2), and the eases which follow it. 'They all proceed upon the principle that, 'where the remedy of execution against the goods has been exer- cised, until the writ has been completely returned there cannot be any remedy exercised against the person of the debtor. A plaintiff cannot have two remedies going on at the same time. The same pinciple was applied in Cohen v. Cunningham (3), on the ground that the remedy by enforcement of bankruptey is really in the nature of an execution against the debtor's goods. That is the "principle upon which the cases, in 1 Atkyns referred to by the Chief Justice, proceeded. In his judgment in the ease Br parte Wilson (4), Lord Hardwicke L.C., says, "This Court will not suffer a petitioning creditor to arrest a bankrupt, and for this reason, because that a commission of bankruptcy is considered instance." oth as an action and an execution in the fi It would seem therefore to be a well established principle that where a judgment creditor has pursued his remedy against property, whether by fieri facias directly levying upon the goods, or by way of a proceeding in bankruptey, which brings the whole af the property of the debtor into Court for the purpose of satis- fying this and other debts, he cannot, until that remedy has been followed out and determined, exercise any other remedy against the person of the debtor. Now those being the common law rights Of the respondent and appellant in this respect, does the Defama- tion Act in any way alter them? I will assume for the purpose () 2N.8.Wv. 10 3 6 Tuna. 300; a Now it has always been the law that when a creditor takes the H-C.or A 1905, nes Ferns Manas. O'Connor J. H.C. or A. 1905. Penns 'Maxrts, O'Connor J. HIGH COURT of the observations which Tam about to make that see, 24 of Defamation Act 1901 has repealed, so far as may be nec the provisions of the Bankruptoy Act 1808. Tt provides fi Honor then read see. 24, sub-see.(1) of the Defumation Act my Now the law which puts the respondent to her election in thiseae is not a law for the relief of insolvent debtors. It is part of general common law, which arises from the very nature of { remedies, and it would be stretching the Statute a long way to say that a branch of the common law, because it is applied in relation toa case where a plaintiff'seeks a remedy in the Insolveney Cour, comes within the words "a law . . . for the relief of insolvext debtors" 'The matter appears to me to depend entirely on the common law rights of the parties, and the words of sec. 24 do not in any way affect those rights. I agree with their Honors, tit under see. 24 the common law rights of the parties are preserval just as they stand. When the estate of the debtor is releasd from bankruptey, the same remedies that existed before will revive. The bankruptcy is merely an interlude. Tf the respondent has not recovered the whole amount of the judgment, the debtors liability for the balance remains, and may be enforced, to the | extent of the debt remaining unsatistied when the bankruptey is at an end, as if the bankruptcy had never taken place, Inthat way the intention of the legislature, which was to preserve the remedies which a plaintiff had under the Defamation Act, apart altogether from the Bankruptcy law, as they existed before is carried out. i I am of opinion therefore, that the writ of ca. sa, wasrightly st aside. Appeal allowed with costs. Order appeal from discharged with costs of appedl to Supreme Court. Order of a. H Simpson J. restored. F ; On the application of Armstrong, the Court, for special reasons : ordered the amount of security to be paid out to the appellats solicitor. ' : Bromfield, for the respondent, asked to be allowed to se-offthe RJ OF AUSTRALIA. of the appeal against the verdict. That cannot be done # ©: 0? 4. without an order. A. H. Simpson J. refused to make such an 'order, and if his order is restored that part.of it will stand. Pensas He also asked the Court to stay an action which was being Manny. 'nought against the respondent and her solicitor, claiming damages © — for false imprisonment, &e. Gurrir CJ. This Court cannot stay another action. The appellant is not receiving any favour from the Court. We cannot {npose upon him a condition upon which he may enjoy his right. Bromjield. The Court can make the costs conditional upon the withdrawal of the action. Armstrong. It is a universal rule that, where the setting aside ofa writ is a mnatter of discretion, the Court will not set it aside except upon reasonable terms, but here there has been no exercise ofdiseretion. The appellant has shown a right, not appealed for 'a favour. Privy Council costs cannot be set off, whatever the circumstances may be: Adams v. Young (5). These costs are on the same footing. Per curiam, Substantially the same relief can be given in nother form, Order that costs of the motion in the Supreme Court be set off against the respondent's judgment. Execution for costs of the appeal to the High Court not to issue if the respondent executes a release of a corresponding amount of her judgment debt. - Solicitors for appellant, Levy & Fulton. Solicitors for respondent, Lambton, Milford, & Abbott. OA (1) 15.N.S.W. W.N., 269.