1867. March 27. If a married woman has property settled on her, but in the hands of trus tees, she has "means" within the 87th section Ex parte HARVEY and wife (a). BUTLER moved to make absolute a rule nisi for a prohibition to restrain Mr. District Court Judge McFarland, the Registrar, the head bailiff, and one Head, from further proceeding under an order for a writ of ca. sa., made by the learned District Court Judge The applicants were the defendants in an action in the of the District Metropolitan District Court, against whom a judgment Court Act, has been recovered, with costs, by the respondent Head. appears that certain property is vested in a trustee issue against for the separate use of Mrs. Harvey. But it is sub and a ca. sa. may legally her. It mitted that the words of the 87th section of the District Court Act are the same as those of the proviso of the 3rd section of the Act abolishing imprisonment for debt (b); and the other side, therefore, must bring the case within the words of the enactment; or the order is without jurisdiction. Any property once come to the wife's hand, belongs to her husband. How then can she have any means whereby she can satisfy the judgment? Sir W. Manning, Q.C., and Windeyer contra. The order complained of was within the jurisdiction of the Judge, and the present application must fail. It is submitted also that Ferguson v. Clayworth (c) is a distinct authority that the order was rightly made. There, in an action against the husband and wife, the wife, being taken in execution, applied to be discharged, on an affidavit stating that she lived separate from her husband, had for several years been boarded, lodged, and clothed at the expense of her son, was not possessed of or entitled to any property in possession, remainder, or reversion, and had no means of satisfying, or expectation of being able to satisfy, the damages or costs. The affidavit in answer, suggesting generally, on information and belief, (a) Before Stephen, C.J., Cheeke, J., and Faucett, J. (b) 10 Vic., No. 7. (c) 6 Q.B. 269. that the wife had separate funds, and stating that the son, in consideration of his father's giving up to him a certain business, had covenanted to maintain his mother during her life, provided she would reside with him and assist him in such business; and that the wife, when arrested, was residing with the son, and assisting in the business. The Court refused to discharge her. Patteson, J., says, "The proof on the part of the wife is not satisfactory. The defendant and her son might have sworn directly, that no part of the property held by the son was held to her use." Mr. Archbold (a) says, " the Court will require the strictest negative proof from her that she has no separate property." Here, it is clear the wife has property beyond her husband's control. STEPHEN, C.J. I am of opinion that if a married woman has separate property (i e., property settled on her, but in the hands of trustees) she has " means within the 87th section of the District Court Act (b), and therefore that a ca. sa. may legally issue against her. But a ca. sa. cannot, in my opinion, issue (in other words, a District Court has not jurisdiction to issue a ca. sa.), if a married woman has not in legal intendment, within the meaning of the 87th section, any such means. The other Judges concurred. 1867. Ex parte HARVEY and wife. Rule discharged. (a) Ch. Arch., Pt. 1, Ch. 27, s. 2. (b) 22 Vic., No. 18. 1867. March S. A. being sued upon an ad. ministration boud, seques the assignee of A. to come in and defend the action, under s. 31 of the Insolvent Act, and on proving a breach of the condition, got a verdict for the amount of the penalty, on which he entered up judgment with costs. The Chief Commis ATTORNEY GENERAL against BUCKLAND (α). DARLEY, for the plaintiff, moved to set aside his own judgment in the action, and the verdict on which it was founded, in order that he might have trated his estate. The an opportunity of proceeding against the defendant's plaintiff went to trial with assignee, according to the law laid down in In re Buckout giving land's Insolvency (b). The Chief Commissioner has any notice to rejected the proof of the plaintiff's claim on the judgment, on the ground that the judgment was irregular, as no notice had been given to the assignee under section 31 of the Insolvent Act; and this decision has been supported by this Court. Emery v. Webster (c) is an authority that the Court will interfere in a case like this, either in the exercise of its equitable jurisdiction, or by virtue of its inherent power over its own judgments, if justice so requires. In that case, which was an action for a breach of contract to employ the plaintiff as an actor for three years, at a weekly salary of £8, the declaration claimed general damages for the wrongful dismissal, and the plaintiff, in his particulars of demand, merely claimed £32 for four weeks salary. The defendant paid £32 into Court, and the plaintiff's attorney, under the mistaken impression and belief that the plaintiff was entitled under that form of declaration to recover for four weeks salary only, took the money out of Court and gave notice of taxation of costs, which were accordingly taxed and paid. But within a few days afterwards, the plaintiff's attorney, having discovered his mistake, obtained a Judge's order to set aside the replication and all subsequent proceedings, with leave to the plaintiff, upon refunding the money so paid, and the costs, to amend his declaration, and the particulars of demand in conformity therewith, by in sioner, on the plaintiff ten dering proof of his claim and the Court in which it was founded, the grave, J., dis sentiente) granted the application. Court (Har (a) Before Stephen, C.J., Hargrave, J., and Cheeke, J. (b) 5 Sup. Ct. R., C. L. 248. The facts of the case will be there found stated at length. (c) 9 Exch. 242; in Error, 10 Exch. 901. creasing the amount of his claim for damages from £100 to £400, with liberty to the defendant to plead de novo. It was deposed at the time of the application, that the money had been taken out of Court wholly under a mistake; and it also appeared that the plaintiff, a short time previously, had been offered £100 by the defendant to settle the disputed claim, and the Court held that the order was rightly made. This authority has been recognised recently by the Court of Queen's Bench in Cannan v. Reynolds (a). In that case the plaintiffs having delivered a declaration against A. and B., and another against A. and C., with particulars of demand in each, A. and B. suffered judgment by default on 16th January, and paid the amount claimed in the particulars in that action. Afterwards A. and C. pleaded to the action. The plaintiffs, in the latter part of April, discovered that by mistake they had included in the particulars delivered to A. and C. items which ought to have been in the particulars delivered to A. and B. On affidavit of these facts, and that A. and B. were aware of the mistake, and allowed judgment to go by default on purpose, the Court, in Trinity Term (June 12th), set aside the judgment signed against A. and B., and amended the particulars of demand, on plaintiffs paying all costs and refunding the money received. Here, the Court will assist in preventing the assets of Rhodes' estate being distributed among Buckland's creditors, through a mistake on a doubtful point of law. It is said by Mr. Brown, under the maxim ignorantia juris non excusat (b), that, "although ignorance of the law does not excuse persons, so as to exempt them from the consequences of their acts, as, for example, from punishment for a criminal offence, or damages for breach of contract, the law nevertheless takes notice that there may be a doubtful point of law, and that a person may be ignorant of the law, and it is quite evident that ignorance of the law does in reality exist." He referred also to the judgment of Maule, J., in Martindale v. Falkner (c). [Stephen, C.J. I entertain a doubt whether (a) 5 E. & B. 301; 26 L.J.Q.B. 62. (5) p. 250. (c) 2 C. B. 720. 1867. ATTORNEY V. BUCKLAND. 1867. GENERAL V. BUCKLAND. this rejection was the proper course. Ought not the ATTORNEY assignee to have moved to set aside the judgment? While unreversed, ought not the Chief Commissioner to have respected the judgment, and either allowed the proof, or suspended his decision till the judgment should have been set aside or upheld? Is not the judgment indeed right? It is the verdict, and the proceeding with the cause to trial which alone are wrong.] March 28. Stephen, for the assignee, showed cause. The plaintiff, who is not the Crown, but a creditor using the name of the Crown, chose to assume that he was not bound by section 31; and if injured, he has therefore his own mistake to blame; and he ought to have come here immediately after the Chief Commissioner's decision, and not have waited, till on appeal that decision was affirmed. Darley replied. Their Honors now gave judgment as follows: STEPHEN, C.J. The application by the plaintiff in this case-or, rather, by the parties using the AttorneyGeneral's name is consequent on the decision in in re Buckland's Insolvency (a); and is, to set aside their own judgment in the action, and the verdict on which it was founded, in order that they may now have the opportunity, as individuals, of proceeding against the defendant's assignee, according to the law laid down in that decision. The defendant in the action, it appears, was surety for one Frazer in an administration bond. In pursuance of the provisions of the Charter of Justice, clauses 15 and 16 (founded on the authority given by the 1 G. IV., c. 96, s. 10, if not indeed within the inherent powers of the Crown, independently of any statute), that bond was executed to her Majesty; and, one or more of its conditions being broken, the parties interested in the deceased's estate obtained from this Court, on the usual terms, an order for suing on the instrument. This action was commenced accordingly, and necessarily in the (a) 5 Sup. Ct. R., C. L. 245. |