conditions of the lease. Rule absolute. in the event of their arriving at certain findings, Solicitors for Henry Coleman, Gillott and Co.; for direct that he should be imprisoned for a certain, Victorian Trotting Club, Casey & O'Halloraa.

period. The debtor in this case was charged under this section with having had since the order for payment was made against him. sufficient means and

(Before Higinbotham. C.J.; Williams, Holrod, J.J.) ability to pay the debt ordered to be paid and with

R. v. BOND EXP. HENSON.

September 11. Imprisonment for Debt Act, No. 284, Sec. 3; Justice of the Peace Act, No. 571, Sec. 4; Justice of the Peace (Informalities) Act, 1884, No. 810, Sec. 6: Duty of Justices; Means and Ability to Pay Negligence Costs.

When a debtor is summoned before Justices under the
Imprisonment for Debt Act, No. 284, it is the duty of
the Justices to satisfy themselves that the debtor has
committed an offence under the Act, aud to see that
the order drawn up embodies that offence, and to re-
frain from using the Act as a means of enforcing
debts. Where an order made by Justices under the
Act stated that the debtor had had the means but
ommitted to state that he had had the ability to pay,
and there was an absence of sufficient evidence on
the latter point.

Held, that the order could not be rectified under the
Justices of the Peace Act, No. 810, Section 6, and
that it must be quashed, As a mistake was solely
due to the negligence of the Justices no costs were
given against the creditor, but the Justices (if they
had been made parties to the proceedings) might
have been ordered to
pay the costs.
Semble, that the order was also bad for directing that
the money should be paid to the complainant instead
of to the Clerk of Petty Sessions, as directed by the

Act.

This was an order nisi to quash an order made by justices at Fitzroy on the 1st March, 1888. by which they directed that Henry Henson should pay to Rebecca Bond within 14 days the sum of £7 8s., for which an order was made against him in the police court on the 26th August, 1887. The amount was due for board and lodging. In default of payment of the debt it was directed that Henson should be imprisoned for 11 days.

having refused and neglected to pay the same. There are two objections to the order of the justices. The first is that it requires the amount to be paid to the complainant instead of to the clerk of petty sessions. It is unnecessary to consider the first ground

the

as the decision of the court will be based on the
second ground. But it is only necessary and proper
to observe, in respect to it, that the third section
clearly directs that the amount which is ordered
to be paid should be paid into court or to
clerk of petty sessions, and the justices hid n)
warrant for ordering the amount to be paid
to the complainant.
The second ground
of objection that it did not appear that the debtor
had had sufficient means and ability to pay the
amount referred to in the order. The order recites
that the debtor had had means to pay the amount
and had refused to pay, but omits the allegation that
he had ability to pay it. These two requisites are in

66

the section. In order to complete the offence stated in this part of the section it was necessary not only but also that he should have had the ability to pay that the debtor should have had the means to pay, the debt. The words are clearly not synonomous. out of which the debt might be paid. "Ability to Means" to pay means that the debtor has property pay points to the capacity of the debtor to apply that property to the purposes for which it is his duty to A man might have property in such a form that he could not at any particular time, or might not be able for a continuing time, to realise it and apply it in payment of his debts. Unless, therefore, he has got both the property and the ability to use that property to pay his debts, he has not committed an offence against that section. The justices have omitted the word "ability" from their order, and it therefore became the duty of the Court now to consider what is the effect of that omission. That turns upon the 6th section of the Justice of the Peace Informalities Act 1884, which provides that where any order was brought before the Supreme Court under the Act 571 such order shall not be deemed to be void by reason of any defect in form or substance if it be shown to the satisfaction of the Court that there had been good proof before the justices to maintain it. It is therefore the duty of the Court to uphold this order HIGINBOTHAM C.J.-This is an order nisi, obtained if they were satisfied that there was sufficient ground under section of the Act 571 calling on Mrs. Bond before the justices on which this material defect could to show cause why an order made by Justices at Fitz-be supplied. It was impossible to say if they came roy on the 1st March of this year should not be quashed on two grounds. The order sought to be quashed was made by justices under section 3 of the Imprisonment for Debt Act, which provided that in a number of specified cases the debtor might be sumin oned, and be examined by the justices, who might

Mr. MacDermott moved absolute the order to quash the order made by the justices. Mrs. Bond appeared on her own behalf, and asked that if there was any informality in the proceedings she should not be required to pay the costs.

to any conclusion as to the ability of the debtor to pay. If they believed the debtor, they would be justified in coming to the conclusion that he had not had the ability to pay; and if they came to that con clusion, then no offence had been committed by the debtor, and he had been most unjustly and improperly

convicted of any offence where he had committed no offence. It might be also that the justices had formed no opinion at all, and that by carelessness they omitted this essential particular from their order. If that omission was due to negligence, then it was very grave negligence indeed. I prefer to believe it was negligence and that they did not deliberately and knowingly find the debtor guilty when they believed him not guilty. If it were not wilfully done, then the Justices had committed grave negligence in drawing up the order, and omitting the essential part of the charge necessary to be brought and proved to their satisfaction before they were entitled to make any order at all. Cases of this kind had frequently been brought under the attention of the Court, and the Court had repeatedly pointel out to justices the very grave character of their duties when acting under this Imprisonment for Debt Statute. It had repeatedly called attention to the fact that justices appeared to use the Act as a means of enforcing payment of debts. That was an entire misapprehension as to the meaning and effect of the law. This law was one intended to punish persons who acted in a criminal manner by dishonestly witholding payment of a debt which they were able to pay, or dishonestly incurring a debt which they ought not to have incurred. And to use it as a means of enforcing payment of ordinary trade debts is a gross abuse of the intention of the Legislature, and involves a very grave injustice to individuals. If a man is sent to gaol under this statute he is sent to gaol for a criminal offence. The law does not attach for non-payment of a deht. The statute was intended to reduce the number of cases in which a

man could be imprisoned for non-payment of debts,
and substituted a class of offences for which punish
ment could be inflicted. It is not a means of en-
forcing a civil claim.
These indications of the Court
have not been duly regarded by the justices; and it
had been intimated that if further disregard were
paid by the justices to the opinion of the Court as to
the meaning of the act, the Court might be compelled
to visit upon the justices the consequences of the
injustice that they had inflicted on individuals, and
might order them to pay the costs incurred in couse-
quence of their negligence in the discharge of the'r
duties under the act. In this case there had been very
grave negligence. It might be that the negligence
was that of the clerk, but the justices were respon-
sible for him, and would be held by the Court to be
responsible for him, and to see that their clerk did
his duty, and did not draw up orders carelessly or
negligently. It is the duty of the justices here to
examine the debtor for themselves. This was not a '
case where a plaintiff' came into Court and made his
charge and called evidence and the defendant
answered it. The duty is cast upon the judge of the
Court and the justices to examine the debtor for
themselves, and to ascertain from the debtor the cir-
cumstances under which the debt was contracted, or
the circumstances under which he omitted to pay the
debt. The evidence in this case is so brief and so

29th Sept., 1855.

obscure that it does not represent all the facts which the justices ought to have elicited for themselves by the examination of the debtor. Every point of the case, then, appears to indicate great negligence on the part of the justices, and were it not for the fact that they are not parties they might have been visited with the costs. The fault rests with the justices, who are not parties to the proceedings before this Court, and no costs will be given against the creditor. The order to quash the order of the justices will be made absolute without costs.

sufficient evidence before the justices to authorise WILLIAMS, J.--It is quite clear that there was not the Court to make the necessary amendment to rectify the omission made by the justices in their order. If the same evidence had been given before granted the order under the Imprisonment for Debt me as was given before the justices, I would not have reckless, careless, and extravagant way in which the Statute. I quite concur in the observations as to the justices make orders for imprisonment under that

statute.

The justices appear to regard the statute as and do not regard it in the light in a sort of a machine for extracting debts from debtors, is intended to be regarded- namely, as a statute which it under which fraudulent debtors shall be punished. Speaking for myself, I would feel great pleathis jurisdiction from the justices, because justices sure if the Legislature thought fit to withdraw had granted orders against the debtors where there was not even a suspicion against the debtor, and in other cases they had granted orders where there was only a suspicion and no more-forgetful of the dishonesty or fraud, it was for the person who made principle that where one person charged another with the charge to prove it beyond any reasonable doubt. the clearest proof should be given of some one of the In the cases that came before me I always insist that offences mentioned in the statute. The justices here had made a bungle from the beginning to the end, and evidently did not understand their duty. I therefore think no costs should be given against the

creditor.

HOLROYD, J.-Strictly speaking it is the duty of the judge or of the justices, as the case might be, under the Imprisonment for Debt Statute, to examine the debtor. They might permit questions to be put on their behalf, and naturally the person to put the questions would be the person who obtained the summons and who knew most about the case. But the judge or justices, as the case might be, must satisfy themselves that the debtor had committed an offence under the statute, and the judge or justices must put such questions as to them might seem fit to get a response to the question which they had to put to themselves--whether the debtor had been guilty of any offence under the Act.

Order to quash the order for commitment made by the justices made absolute without costs. Solicitor for applicant. Grave; respondent in person.

15th Oct., Iss.

the

cheque, being deposit on purchase of 50 acres 2, act is to be done at a certain time; Spriggs c. roods and 31 perches, situate at Preston, on follow-| E.S.1.C. Bank (12 V.LR. 489.) As regards ing terms: Price £25,250, payable as follows, £2,500 cash, £3,500 in one month, £9,500 in 12 months, and £9,750 in 24 months at 5 per cent. interest.

third defence the receipt is bad on the face of it as it is not shown who is the purchaser; Vandenbergh_v. Spooner (L.R. 1, Ex. 316.) The plaintiff's name only appears as a broker. Moreover the Statute of Frauds makes a distinction between a contract and an agreement for a contract. This document bears on its face a proof that it is not "the contract"; it is a mere memorandum in writing under the statute which per se is not complete, it being intended by the parties that a formal document should be drawn up. As to the admissibility of evidence as to the terms under such circumstances; Fry on Specitie Performance, p.p. 224-227. If the words" subject to a more formal contract had been inserted in the ree ipt the plaintiff would have no case ; Winn v. Bull (L.R, 7, Ch. D. 29.) Hawksworth r. Chaffey (55 L.J. (Ch. Div.) 335.) If the agreement constituted the final depositary of the intentions of the parties no evidence of terms not specified therein could be given Clough e. Rowe (14 V.L.R. 74, 76); it does not and therefore evidence is admissible.

W. AND J. STRONG AND LORD. After the giving of this document by the defend ants it was verbally arranged between the parties that they should meet at the office of the plaintiff on the 12th May, to enable the plaintiff to inspect the defendants' title, and to pay to the defendants the sum necessary to complete. Before, however, the specified time arrived an alteration was made by agreement, and an appointment was made for the 25th May at twelve o'clock, the intention, apparently, being that on that day and at that time a formal document should be drawn up and signed, embodying in it the particulars already set forth in the above mentioned receipt; it was also intended that the transaction at the same time should be completed by payment of the balance of the L2,500. About twelve o'clock on the 25th the plaintiff tendered his cheque for the sum of L2,400 to the defendants, Hodges (with him Higgins) for the plaintiff: The which, however, they refused to accept, on the ground defence is not raised on the pleadings that time is of that they should have gold. The plaintiff subse- the essence; assuming that it is, there is no evidence quently on the same day did tender gold, but the to support it. If there is no agreement as to time defendants refused to accept it, on the ground that it there must be reasonable notice; (Dart 6th Ed 487.) was too late. It further appeared that the plaintiff, The defence of rescission by consent has been abanthough appearing as the sole purchaser, was joined doned. The name of the purchaser appears on the with another person in the venture. By his state-receipt sufficiently for all purposes: (Dart 252.) ment of claim the plaintiff claimed (1) “ A declaration that the said contract is a valid and subsisting contract and specific performance of the said contract, including an order that defendants do accept the said sum of £25,250. (2) An injunction to restrain the defendants from selling the said land, or alternatively, (3) damages for breach of the said contract."

By their defence the defendants signified their intention of contending inter alia that time was of the essence of the contract, as regards the payment of the sum of L2,500 cash, and of objecting that the 107th section of the Instruments and Securities Statute was not complied with, and that it was the intention of the parties that a more formal contract would be pared.

pre

Topp (with him Isaacs) for the defendant: Three defences are raised. (1.) Time is of the essence of the contract; (2) on the 25th May the agreement was put an end to, on failure by the plaintiff to pay by mutual consent; (3) the Statute of Frauds, that is the 107th section of the "Instruments and Securi ties Act," has not been complied with in two respects, namely—(a) as the receipt is bad on the face of it; (b) as the terms are not all contained in the alleged contract. As regards the first defence, time can be made of the essence in various ways, it may be made so by the document itself, or it may be made essential by a subsequent arrangement between the parties, that a certain act shall be done at a certain time, or it may be made so by a notification that the

were

Benjamin on Sales pp 194, 198, 199; Newell v. Radford (L.R. 3, C.P. 52.) The plaintiff would not be allowed to say that he was merely an agent for somebody else if an action on the contract brought against him. As to reference to a formal contract, the cases are collected in Dart at page 265. Some of them are Rossiter r. Miller (L.R. 3, Ap. Ca. 1139), Eadie v. Addison (52 L.J. (Ch.) 80), Hussey v. Horn-Payne (L.R. 4, H.L. 411.) The onus lies on the defendants of showing that a complete contract was a term of the agreement without which the agreement would not have been the agreement.

The

HIS HONOR, in delivering judgment, said: This was an action tried before me on the 17th, 18th, 19th, 21st, and 24th September at the sittings of the Supreme Court in its Equity jurisdiction. entered into between himself and the defendants on plaintiff claims specific performance of a contract the 22nd of May, 1888, whereby the plaintiff' agreed to buy and the defendants agreed to sell 50a. 2r. 3!p. situated at Preston for £25,250, payable £2,500 cash, and the balance at certain periods. A cheque for £100 was paid by the plaintiff to the defendants as a preliminary deposit, and a receipt for the same was given by defendants. The receipt was on one of the plaintiff's forms, with R. C. Pudney, business broker," &c., printed as a heading, and is as fol

J. STRONG and LORD.

it.

The

following terms: Price, £25,250, payable as follows £2.500 ment was paid. It was first arranged that matters cash, £3.500 in one mouth. £2,500 in 12 months, and £9.750 should be finally settled at plaintiff's office. An apin 24 m nths, at 5 per cent. interest. £100. (Sd.) W. and pointment was made for half-past 10 on the 23rd The defendants have not completed the sale, under, May, but plaintiff and Reed were not there at the the circumstances hereinafter mentioned, and the time, owing, it was said, to some misunderstanding as plaintiff claims (1) specific performance of the con- to the time fixed. Wm. Strong could not wait, but tract, (2) an injunction to restrain the defendants left W. Strong, jun, to make an appointment from selling the land, or in the alternative (3) dam- for that afternoon. In the afternoon Wm. Strong ages for breach of the said contract. The defendants brought Mr. Leonard, as his solicitor, to plainadmit the sale, admit receiving the deposit of £100 tiff's house. Defendant Wm. Strong produced the and giving the receipt before recited for it, but deny title, and plaintiff, his clerk, and Mr. Reed all say that that receipt embodied the contract, or that it that Mr. Leonard snatched the title deed out of Mr. would satisfy the Statute of Frauds. The following Strong's hands, saying. What is this? I thought are shortly the facts as detailed in evidence: --On you were buying a piece of land, not selling it. I the 16th May, a Mr. F. W. Reed met William Strong, will prepare the contract for you." Reed says that jun., a nephew of the defendants, W. and J. Strong, Mr. Leonard afterwards stated to W. Strong that if at a Masonic banquet. The subject of land was in- he had known the land was for sale he could have troduced, and William Strong, jun., informed Reed got a better price for it, and that all through he that he knew of a block of land at Preston of 50 seemed annoyed. Mr. Leonard says distinctly that acres. The next day Reed wrote to W. Strong, jun., he went to the office on purpose to get instructions for particulars, and on the same day, the 17th, Strong from plaintiff in order to prepare the contract. jun., forwarded particulars and offered the land on plaintiff' says that he said, "If you are going to behalf of the owner at £500 an acre, and asked him prepare the contract I shall want you to send it to to see about it at once, as there was a syndicate after my solicitor, Mr. Daly," and that Mr. Leonard Reed informed the plaintiff, and they went and | agreed. Mr. Leonard denies that he agreed, but saw the land. The plaintiff and Reed afterwards states that he heard plaintiff mention Daly's name to met Win. Strong and his nephew, and they discussed Reed. During this interview plaintiff' says he offered the terms, but nothing was done. On the 19th De-a further cheque for £1,000 on account of the deposit, cember, plaintiff and Reed met at W. Strong's house, Brunswick. They could not agree as to terms, or as to getting the land definitely under offer, as the detendants insisted on getting a quarter cash, and the property was in Messrs. Ham's hands for sale. Plaintiff and Reed said they were only part of a syndicate of 10, each paying £250, and after consultation with the members of the syndicate they would meet defendants next day at the Town-hall corner. The parties met again next day at the place appointed, and the property was withdrawn from Messrs. Ham and put definitely under offer to the plaintiff and Reed. Strong, jun., says he saw a piece of paper in plaintiff's hand about half the size of Exhibit B, and plaintiff, handing it to Wm. Strong, said, I think this will meet your views." Wm. Strong said, that is about it." An appointment was made for next day (22nd December) at the plaintiff's office. The parties met as agreed, and after discussion as to not charg ing for the odd perches and the rate of interest, the parties were finally agreed, and the defendants took as a preliminary deposit a cheque for £100. The plaintiff drew out the receipt and read it aloud, and then defendant Wm. Strong signed it in the of Joseph Strong and Wm. Strong, jun. Joseph Strong says that he asked if the receipt was anything more than a receipt, because it embodied all the terms, and they ought each to have a copy of it. Both Wm. Strong and plaintiff said an extended contract would be drawn up. Plaintiff and Reed both deny hearing this remark, but it was agreed between all the parties that a printed contract should be signed afterwards when the balance of the cash instal

but defendant Wm. Strong said he was not afraid. Friday, the 25th May, at 12 o'clock, was appointed for the settlement, at plaintiff's office, but Mr. Hoyland, managing clerk for M'Kean and Leonard, informed plaintiff that the settlen ent would be at M'Kean and Leonard's office. Plaintiff went to M Kean and Leonard's office with Mr. Hoyland, and there obtained a copy of the extended contract, and with Mr. Hoyland then went to Mr. Daly's office, but he was not in. On the way back plaintiff was joined by Mr. Reed. Mr. Hoyland told plaintiff and Reed that defendants were at M Kean and Leonard's office waiting for the contract to be signed, and they went there. When the parties met in Mr. Leonard's room Plaintiff the contract was handed to plaintiff. demurred to signing before Mr. Daly had approved of the document, but was informed by Mr. Hoyland that that was the only contract his clients would sell under. Plaintiff said he supposed they would have to be satisfied. He then drew a cheque for £2,400. W. Strong sa'd. "I wen't take a cheque: this is a cash transaction." The cash transaction." Plaintiff said, "This is an open Wm. cheque; come to the bank and get the cash." Plaintiff says W. Strong took out Strong refused. presence his watch, and said, "I'll give you until 1 o'clock to get the money, It then wanted eight minutes to 1. Wm. Strong denies that he fixed any time, but says that he said he had been there from about 12 o'clock, and he asked plaintiff and Reed to be quick. Plaintiff and Reed hurried to the English and Scottish Bank, and after two or three minutes' delay they saw Mr. Tyson, who told them as it was mid-day he could not attend to it, but if he would bring the document and