[Wightman J. Suppose the action had been brought in Victoria and the defendant had pleaded his discharge, and thereupon judgment had been given for him, and afterwards the plaintiff and the defendant came to England, could the plaintiff recover in an action here?] No; because by bringing his action in the Court of Victoria he had elected to subject himself to the law of that Colony. If the first replication to the second plea is defective, at all events the second replication to that plea shews that the breach of contract took place out of the jurisdiction of the colonial Court. It alleges that "the debts became and were payable and ought to have been paid to the plaintiff in England." [Wightman J. The replication does not allege that the debts were payable in England and not elsewhere.] It does so, in effect, by the statement that they became payable in England under and by virtue of the contracts in the declaration mentioned." [Blackburn J. Under this declaration the plaintiff could not give in evidence a contract to pay at a particular place, and not elsewhere.] Yes: the declaration is general, and would be supported by evidence either of a general or special contract, provided the time of payment had elapsed before action brought. [Crompton J. The point as to the lex loci solutionis could not be raised without an amendment of the declaration by adding a count upon a special contract. That point is not raised on the pleadings, and, if it were, there is the strong authority of Lord Ellenborough in Potter v. Brown (a) against the plaintiff.] COCKBURN C. J. On this state of the record it must be (a) 5 East, 124, 130. 1862. GARDINER T. HOUGHTON. GARDINER v. 1862. taken that the debt sued on was contracted in the Colony of Victoria, and payable there; and there is a plea of disHOUGHTON. charge under the law of that Colony. The rule adopted by Lord Ellenborough in Potter v. Brown (a), after the cases of Ballantine v. Golding (b) and Hunter v. Potts (c), viz., "that what is a discharge of a debt in the country where it was contracted is a discharge everywhere," applies to a discharge by a Court in a foreign country: à fortiori, it applies to a discharge by a Court in one of the British Colonies. DUTTON against HALLEY. 1. The Bankruptcy (Scotland) Act, 1856, 19 & 20 Vict. c. 79. 8. 47., enacts that a warrant granting protection shall protect the debtor from arrest in Great Britain and Ireland, and Her Majesty's other dominions, for civil debt contracted previous to the sequestration; but such warrant shall not be of any effect against the execution of a warrant of apprehension in meditatione fugæ or ad factum præstandum, or for any criminal act: Held, that the exception extended to like process in England and Ireland and other parts of the Queen's dominions. 2. The defendant being about to leave this country for New Zealand, was arrested on a capias under stat. 1 & 2 Vict. c. 110. s. 3. The plaintiff had proved his debt in Scotland; and a warrant of protection had been granted to the defendant for a limited period, which had not elapsed when he was arrested: held, that the defendant was not entitled to be discharged. IN this Term, Archibald obtained a rule calling upon the plaintiff to shew cause why the defendant should not be discharged out of custody on the ground that, previous to the arrest, the defendant's estate had been sequestrated in Scotland, and the plaintiff had proved his debt under the seques tration; and also on the ground that, at the time of the arrest, the defendant was protected from arrest under The Bankruptcy (Scotland) Act, 1856, 19 & 20 Vict. c. 79.; and why the plaintiff should not pay the costs of the application. The defendant was indebted to the plaintiff in the sum of 6491. 16s. 5d. on two bills of exchange, drawn by the plaintiff and accepted by the defendant; and the plaintiff, believing that the defendant with his family was about to leave this country for New Zealand, caused him to be arrested on the 30th May, 1862, on a capias, obtained on an affidavit of the plaintiff, in pursuance of stat. 1 & 2 Vict. c. 110. s. 3. On the 19th March, 1862, the defendant, who was resident and carrying on business as a merchant at Auchterarder in Scotland, presented, with the concurrence of a creditor, his petition to the sheriff of the county of Perth, under stat. 19 & 20 Vict. c. 79.; and the sheriff in pursuance of sect. 13, awarded sequestration of his estate, and appointed the first meeting of his creditors for the election of a trustee and other purposes required by the Act, to be held on the 31st March; and the sheriff also then, in pursuance of sect. 44, granted his warrant for protection of the defendant's person from arrest or imprisonment for civil debt until that meeting. The meeting was held on the day appointed, at which the majority in number and value of the creditors, and among them the mandatary for the plaintiff, were present, and a trustee of the defendant's estate was appointed, and the creditors who were present unanimously resolved that his protection should be renewed, under sect. 77, for four months from the 31st March, and an order was made by the sheriff accordingly. At that meeting the plaintiff, by his mandatary, proved his debt amounting to 1862. DUTTON υ. HALLEY. 1862. DUTTON V. HALLEY. 6497. 18s. ld. On the 19th April, the day appointed by the sheriff under sect. 87 for the examination of the bankrupt, he attended, and was examined by the solicitor for the trustee, and by the solicitor for the plaintiff's mandatary, and took the oath prescribed by sect. 95. At the date of his estate being sequestered, the debts of the bankrupt amounted to about 60007., and his estate delivered up to the trustee consisted of property of the value of 60007. Creditors whose debts amounted to 50927. 17s. 1d. had proved and voted for the renewal of his protection. The affidavit of the bankrupt stated, that having delivered up the whole of his estate to the trustee, and having passed his examination which was finally closed, and the trustee having expressed that he was satisfied with his conduct under the sequestration, he was, with the assistance of his friends, proceeding with his family to Auckland in New Zealand, with letters of accommodation, with the intention of establishing himself in business there, when he was arrested at the suit of the plaintiff'; and that his intention was well known to the trustee and to the commissioners of his estate appointed under the sequestration, and to most (if not all) of his creditors; and that he was not leaving this country clandestinely, or with the intention of cheating or avoiding his creditors, but because he believed that it was no longer necessary for him to remain in this country as he had delivered up the whole of his property, and also given to the trustee and commissioners of his estate all the information in his power respecting the same, with which they had expressed themselves quite satisfied. The affidavit of the trustee of the estate of the bankrupt stated that the bankrupt had complied in all respects with the requirements of stat. 19 & 20 Vict. c. 79., and that, he and the commissioners appointed under the sequestration having thoroughly investigated the affairs of the bankrupt previous to his passing his examination, and being satisfied that he had delivered up the whole of his estate for the benefit of his creditors, there was no necessity, according to the practice of the Scotch Courts, for him to remain any longer in this country; and that he and the commissioners were aware of the fact that the friends of the bankrupt had subscribed a sum of money for the purpose of enabling him and his family to emigrate to New Zealand, where the bankrupt had intimated to him and the commissioners it was his intention to proceed. There was an affidavit to the like effect by one of the commissioners. The application was in the first instance made to Crompton J., at Chambers, who referred the matter to the Court. Upon the argument of the rule an affidavit of William Burns, who had been in practice as a writer, or solicitor, and procurator, before the sheriff and other Courts of Glasgow for twenty years, was produced, which stated as follows: "That it is the law and practice of the Courts in Scotland to grant a warrant, as in meditatione fugæ, against a sequestrated debtor, on the application of any creditor of such debtor, who shall depose to the facts of the debt being due and of the debtor being about to quit Scotland without providing for payment of the debt; that it is no bar to the issuing of such a warrant that the creditor may have proved his debt or ranked in the sequestration; and neither is it any bar to such warrant that a protection under the statute has been given to the debtor; that by the Sequestration statute (9 & 20 Vict. c. 79. s. 47.), it is expressly 1862. DUTTON V. HALLEY. |