1878 EX PARTE ELLIS. STATEMENT. and 2, the authority to make the order of imprisonment is given where (a) the person making default has since the date of the order or judgment the means to pay the sum in respect of which he has made default, and has refused or neglected or refuses or neglects to pay the same, or where (b) the person making default had in incurring the debt or liability, in respect of which he has made default, obtained credit under false pretences or by means of any other fraud, or had incurred the liability by committing an act, for the commission of which the person by the laws of the country where the same was committed, was liable to be proceeded against criminally. The learned judge was of opinion that Ellis had the means of paying the judgment, and that he had incurred the liability by committing an act for which he was liable to be proceeded against criminally in the State of New York, where the act was committed, and made the order for imprisonment on both grounds. Oct. 9, 1877. Mr. Weldon, Q.C., obtained a rule nisi for a writ of habeas corpus, on the ground that these provisions of the Act were beyond the power of the Local Legislature to enact. Sect. 35: The order of commitment shall direct the immediate payment of the amount for which default is made, and any costs awarded as aforesaid, and on non-payment of the same, that the defendant be committed, and the order shall state whether the commitment be with or without privilege of bail or limits; and the order of commitment shall be obeyed and executed by the sheriff and on failure of payment the defendant shall be imprisoned according to the tenor of the order, and shall be discharged out of custody upon payment of the amount named in the order." Sect.36: "No imprisonment under the 30th section shall operate as a satisfaction or extinguishment of any debt or demand, or cause of action, or deprive any person of any right after such imprisonment to take out execution against the lands, goods, or chattels of the person imprisoned, in the same manner as if such imprisonment had not taken place; and no discharge of any person from arrest or imprisonment shall affect the creditor's rights or remedies against the lands, goods or chattels of the person arrested or imprisoned, but the same shall be and remain as if such arrest or imprisonment had not taken place." Oct. 23 and 24, Mr. Barker, Q.C., shewed cause. 1878 EX PARTE ELLIS. The only question here is, whether or not the provisions of sections 28-33 of chapter 38 of the Consolidated Statutes, are within the powers of the Local Legis- ARGUMENT. ture. The effect of these sections is, that they constitute exceptional cases of imprisonment. The power to imprison formerly existed to its fullest extent. These exceptional cases still remain. My learned friend contends that the Act is ultra vires, in that it throws upon the judge the duty of deciding whether or not the defendant has committed an indictable offence. There is no legislating in criminal matters here. The Act does not create a crime, nor provide a punishment for a crime. Suppose Ellis could be tried here, Mr. Justice Wetmore's order would be no answer. The Local Legislature has control of the question of imprisonment for debt in civil suits. That is all this is. The imprisonment is not a punishment. If the defendant pays the judgment he goes free. Formerly a ca. 8a. issued without any order of the Court or a judge. This is only an order instead of a ca. 80.; both come from the Court, and whether you call it an order of attachment, makes no difference. It is nothing more than the execution on the equity side of the Court. The order is for the payment of the moneys, and if not paid, then comes the commitment. It is idle to argue that this is punishment. I never heard of such a doctrine. It is not a crime not to pay one's debts even if one has the means. Attachments for payment of money are in all cases civil remedies Rex v. Edwards (1). If Ellis was in bankruptcy, he would be discharged from this arrest, because it is a civil and not a criminal proceeding; Lees v. Newton (2). But Ellis is not a trader, and he is not subject to the provisions of the Insolvent Act. There is no conflict with that Act here: Armstrong v. McCutchin (3). (1) 9 B. & C. 652. (2) L. R. 1 C. P. 658. (3) 2 Pugsley, 381; ante, p. 494. 1878 EX PARTE It appears quite clear that the Local Legislature, having abolished imprisonment for debt, can give any process it sees fit for the purpose of giving effect to the judgments ARGUMENT. and orders of this Court. Outside of the question of crime, it is clear the learned judge had power to make the order in this case under the first sub-section, he being of opinion that Ellis was able to satisfy the judgment and refused to do it. Mr. Weldon, Q.C., supported the rule. I admit that the Local Legislature can regulate the process in civil suits, but it cannot indirectly punish an offence by giving a remedy in civil proceedings. At Common Law we had the two writs of fi. fa. and ca. sa. Under the first the defendant's goods were levied on; under the second his body was taken in satisfaction of the debt. Where a defendant was imprisoned under a ca. sa., our statutes gave him the benefit of the gaol limits. I do not deny the power of the Legislature to abolish the ca. sa., but I do its power to give a remedy like this. Formerly, taking the body under a ca. sa., was a satisfaction of the debt, and if the defendant was discharged, the debt was extinguished. Subsequently an Act was passed allowing the plaintiff to discharge his debtor from arrest, and retain his execution against the defendant's property. By the Act under discussion, the Legislature has created a new jurisdiction for the Court or a judge. Is it not substantially an adjudication on an offence? The Legislature cannot indirectly obtain a jurisdiction for itself. Under this new process, the defendant may be deprived of his benefit of limits. Before the judge can make the order he must virtually try a crime, and the imprisonment is awarded as a punishment for it. It makes no difference that the defendant can discharge himself by payment. That is shewn by the case of Ex parte Graves (1). A judge cannot imprison merely for non-payment of the debt, he must in addition to that find certain facts in the case involving the commission of an indictable offence. In all cases, such as attachment for contempt and other processes of imprisonment for non-payment of money, the imprisonment extinguishes the debt. Here it does not. (See section 38.) This is an attempt to establish quasi criminal proceedings. It is true that this order would be no answer to an indictment, but that only makes the matter worse, as the defendant would be punished twice. Clearly these provisions are ultra vires. The defendant is not imprisoned because he does not pay his debt, but because he has committed an offence. Then, again, those sections are in conflict with the Insolvent Act. The Dominion Parliament could make the Insolvent Act apply to persons other than traders. The test is not what the Dominion Parliament has done, but what it can do. He referred to Rex v. Edwards (2), Lees v. Newton (3), The Queen v. Chandler (4). The judgment of the majority of the Court (Allen, C. J., Fisher, Wetmore, and Duff, JJ.,) was delivered by ALLEN, C. J.:— The question raised in this case is whether that portion of the Consolidated Statutes, c. 38, sect. 32, which authorizes a judge to commit to prison any person making default in the payment of a sum of money due on a judgment, if the judge is satisfied that the person so making default has incurred the liability by committing an act for the commission of which he was, by the laws of the country where the same was committed, liable to be proceeded against criminally, is ultra vires. (1) L. R. 3 Ch. 642. (3) L. R. 1 C. P, 658. (4) 1 Hannay, 556; ante, p. 421. 1878 EX PARTE ELLIS. ARGUMENT. 1878 EX PARTE Allen, C.J. The contention on the part of the applicant is, that this provision is, in effect, legislating upon the Criminal Law, and is therefore beyond the power of the Local Legislature, as defined in the 91st and 92nd sections of the B. N. A. Act, 1867, by which the exclusive power of legislating upon "the Criminal Law" is given to the Parlia ment of Canada. The question then is, whether this 32nd section does undertake to legislate upon the Criminal Law of the Dominion, and declare that a certain act shall constitute a crime, punishable by the laws of the Dominion or of this Province? For unless it does, and is therefore beyond the jurisdiction of the Local Legislature, we are bound to give effect to it whether we approve of its provisions or not. The chapter in question is headed, "Arrest, Imprisonment and Examination of Debtors." It professes to deal with the rights of creditors and the liability of debtors in civil suits only, their arrest and imprisonment on mesne process, and after final judgment, and their discharge from imprisonment. It neither adds to, nor in any way alters the Criminal Law of the Dominion, nor declares that any act of the debtor shall amount to a criminal offence. In fact it is only a limitation of the power, which a creditor had before the passing of the Act 37 Vict. c. 7, of arresting his debtor, both on mesne and final process, without the intervention of a judge's order, and retaining him in prison till the debt was paid, unless the debtor could obtain his discharge under the provisions of the Insolvent Confined Debtors' Act. Here the extent of imprisonment is a year, no matter what the amount of the judgment may be, with the benefit of the limits, if the judge so directs, and, with the right of the debtor at any time to obtain his discharge on payment of the amount of the judgment, and the costs of the order of commitment; and, indeed, he is not imprisoned at all, if |