CROMPTON J. I am of opinion that, according to the authorities, we ought to construe the words "warrant of apprehension in meditatione fugæ," in stat. 19 & 20 Vict. c. 79. s. 47., as extending to the capias in our law. I think that the Scotch lawyers, in drawing this statute, have used words of their own law to express what is common to the jurisdiction of English Courts as well as Scotch; and when, having framed a clause granting protection to a Scotch bankrupt in England and Ireland, they introduce exceptions, they naturally used a term of their own law to include similar cases according to English law. Moreover, meditatio fugæ is a strictly accurate expression, because it is the foundation of our process as well as theirs. The three cases excepted from the protection granted apply to and include cases of like nature in all the dominions of the Crown to which the protection itself extends. It would be monstrous if a debtor at Glasgow could be stopped, but if he got to the other side of the Solway, he could avoid his creditors. I think the meaning of the English Act of Parliament, 1 & 2 Vict. c. 110. s. 3., is that, if a debt is made out to be due, the creditor has a right to have the security of the body of his debtor for payment of the debt; and therefore this was a valid arrest unless the bankrupt comes within the jurisdiction of the Scotch Bankruptcy Act. And then there is the great authority of Lord Wensleydale on this point in M'Gregor v. Fisken, which was not impugned when that case came into the full Court (a). The enactment, being one to prevent a debtor who has obtained protection from being arrested in England as well as in Scotland, the spirit of it also is in favour of our view. 1862. DUTTON v. HALLEY. (a) See 2 Exch. 226; 5 D. & L. 722. 1862. DUTTON V. HALLEY. BLACKBURN J. The defendant is a debtor about to quit the country; and, if that were all, the plaintiff, his creditor, would be entitled to arrest him; and it is no element for our consideration whether the creditor is harsh or not in taking that step. Then comes the question whether, under sect. 47 of The Scotch Bankruptcy Act, the defendant is entitled to be discharged? If the section had contained only the enacting part, he would have been entitled. Also, if the proviso means that the protection shall have no effect against a warrant of apprehension issued by a Scotch Court, the case is not within it, and the defendant would still be entitled to his discharge. But if it means that the protection shall not have effect against any warrant out of an English Court to the same effect as a warrant of apprehension in meditatione fugæ, this case is within it; and, considering that sect. 47 is an enactment for protecting and liberating from arrest and imprisonment in every country in the Queen's dominions, we must construe the proviso as applying to warrants issued out of the Courts of any of those countries where the debtor happens to be when he is arrested, of the same nature and to the same effect as the warrant of apprehension in meditatione fugæ issuing out of the Scotch Courts. The Scotch warrant in meditatione fugæ is extremely similar to our capias issued on an affidavit that the debtor is about to quit the country: the debtor in England may give bail, which is like finding security de judicio sisti in Scotland; so that the effect of the two warrants is the same. Also our decision is not without authority; for in M'Gregor v. Fisken, cited in M'Gregor v. Fisken (a), Lord Wensleysdale decided that where a Scotch debtor was going to Toronto, in Canada, from England, there (a) 5 D. & L. 591, 594-5, 596. XXV. VICTORIA. was a meditation of flight, within the exception in the section of the Scotch Bankruptcy Act then in force corresponding to sect. 47 of stat. 19 & 20 Vict. c. 79.; in which latter case my brother Wightman held that an intention to go back to Scotland was not a meditation of flight on the part of the debtor, because it was going back to the country where the bankruptcy was pending, and to the jurisdiction which had granted him protection. The previous case of M'Gregor v. Fisken afterwards came before the Court of Exchequer (a). The defendant had been arrested previously to protection being granted, and he had got the wrong form of warrant: but from what is reported as having fallen from the Lord Chief Baron and Lord Wensleydale, they doubted whether the distinction taken by my brother Wightman was right; not whether the decision by Lord Wensleydale at Chambers was right, that the exception is not confined to the warrant of apprehension by its technical name, but extends to analogous writs issued out of an English Court. Being of the same opinion, I agree that this rule ought to be discharged. Rule discharged, without costs. See 2 Exch. 226; 5 D. & L. 722. 1862. DUTTON V. HALLEY. PYм, administratrix, against The GREAT NORTH- Tuesday, ERN Railway Company. June 17th. 9 & 10 Vict. 1. An action on 9 & 10 Vict. c. 93. is maintainable in cases where Reasonable none could have been maintained by the deceased if he had survived the effects of the injury: as the condition in the statute that the action expectation. Damages. could have been maintained by the deceased if death had not ensued, has reference not to the nature of the loss or injury sustained, but to the circumstances under which the bodily injury arose, and the nature of the wrongful act, neglect, or default complained of. 2. Concessum, that in such an action, the damages must be based on pecuniary loss alone. 3. The extinction of a reasonable expectation of pecuniary advantage 1862. Рум V. GREAT from the continuance of the life of the deceased, is a sufficient damage to maintain such an action. 4. Where the party killed was possessed of personalty to the amount of about 34007., and was tenant for life of an estate in land, worth nearly 4000l. a year, with remainder to his eldest son in tail, and by settlement a jointure of 10007. a year was settled on his wife, and 20,000l. secured to the younger children on his death, and the deceased died intestate; held, that the widow and younger children had a sufficient expectation of pecuniary interest from the continuance of his life to render its loss the ground of an action. 5. In that case, the jury having given 13,000l. damages, i. e. 1000%. for the widow and 1500/. for each of the younger children: held, that this was excessive, and that the damages for each of the children ought to be reduced to 10007. THIS HIS was an action, by an administratrix, brought under Lord Campbell's Act 9 & 10 Vict. c. 93. On the trial, before Cockburn C. J., at the Middlesex Sittings after Trinity Term, 1861, it appeared that the action was brought by the plaintiff, as widow and administratrix of a gentleman of fortune, on behalf of herself and their eight younger children, to recover compensation for the loss sustained by them in consequence of the death of the intestate, who was killed by an accident to a railway carriage of the defendants in which he was travelling, occasioned, as was alleged, by the negligence of the defendants, or their servants. The circumstances of the deceased were as follows. He was tenant for life of an estate in land, the value of which was a little short of 4000l. a year. By the provisions of a settlement, executed in 1817, a jointure of 1000l. a year was settled on his wife, and a sum of 20,000l. was secured to the younger children on his death. The estate itself passed under the entail to his eldest son. The personal property amounted to about 34007. He left eight younger children, all under twelve years of age. The Lord Chief Justice left to the jury to say whether the death of the deceased was occasioned by the negligence of the defendants or their servants: and told them that, in estimating the amount of damages, they must not take into consideration any pain of mind or wounded feeling caused to the widow or children by the death, and must assess damages solely as compensation for pecuniary loss sustained by them in consequence of it. He told them that they might take into consideration the loss of the advantages of superior education, social position and personal comforts, of which the father's income, had he lived, would have secured the benefit and enjoyment to the family; and also the loss of that provision, which it was to be presumed that the deceased, as a prudent father of a family, would have made by saving from his income for the benefit of his wife and younger children. The jury found a verdict for the plaintiff, damages 13,000/.; apportioning 1000l. for the widow, and 1500l. for each of the younger children. No compensation was awarded to the eldest son, he having succeeded to the landed property of the deceased under the entail. In Michaelmas Term, 1861, Hawkins, obtained a rule, in pursuance of leave reserved, to enter a verdict for the defendant, or a nonsuit, on the ground that there was no cause of action established by the evidence; or for a new trial, on the ground that the damages were excessive. The rule was argued, in Easter Term, on the 12th May, 1862, before COCKBURN C. J., CROMPTON, BLACKBURN and MELLOR JJ. The 9 & 10 Vict. c. 93. entitled "An Act for compensating the families of persons killed by accidents:" after reciting that "no action at law is now maintainable against a person who by his wrongful act neglect, or default may have caused the death of another person, and it is oftentimes right and expedient that the wrongB. & S. VOL. II. 3 D 1862. PYM V. GREAT NORTHERN Railway Company. |