It must be supported, if at all, upon sect. 103 of stat.
9 & 10 Vict. c. 95., which enacts: "That no imprison-
ment under this Act shall in any wise operate as a
satisfaction or extinguishment of the debt or other cause
of action on which a judgment has been obtained, or
protect the defendant from being anew summoned, and
imprisoned for any new fraud or other default rendering
him liable to be imprisoned under this Act, or deprive
the plaintiff of any right to take out execution against the
goods and chattels of the defendant, in the same manner
as if such imprisonment had not taken place." Now
the liability to imprisonment under the Act, here
referred to, arises upon sect. 99: that section authorizes
the judge of the county court to commit for forty days,
when the party fails to appear under the summons
authorized in sect. 98, or does not answer satisfactorily,
and in other cases, including that relied upon in the
commitment: "if it shall appear to the satisfaction of
the judge of the said court that the party so summoned
has then, or has had since the judgment obtained
against him, sufficient means and ability to pay the
debt or damages or costs so recovered against him,
either altogether, or by any instalment or instalments
which the court in which the judgment was obtained
shall have ordered, or as shall be ordered pursuant to
the power hereinafter provided." Now the default upon
which the first imprisonment was ordered must be
considered to have been satisfied by that imprisonment.
[Lord Campbell C. J. May there not be a new default?
If, after the expiration of the first imprisonment, he had
money enough to satisfy the debt, would not that
amount to a new default? And is not that state of
facts consistent with the return?] The case appears

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to be pointed at by sect. 100: but, under that section,
the proper course would be for the judge to alter his
previous order and make a further order for payment.
[Lord Campbell C. J. The former order would be
correct: why is it to be altered? Coleridge J. There
may have been no alteration in the circumstances,
except the repetition of the default: the same means
of paying may have been in the debtor's hands from
the first.] That would hardly satisfy the expression in
sect. 103,"new fraud or other default." But the last
commitment does not shew, with sufficient distinctness,
that there has been a new default even in the sense
suggested. "It is said in general, that upon the return
of the habeas corpus the cause of the imprisonment
ought to appear as specifically and certainly to the
judges, before whom it is returned, as it did to the
court or person authorized to commit;" 4 Bac. Abr. 133
(7th ed.), tit. Habeas Corpus (B) 10. [Erle J. Each
committal states a distinct summons and adjudication:
why do you ask us to infer that the three are for the
same cause?] There can, under the statute, be only
forty days' imprisonment. [Coleridge J. Sect. 103
appears to be framed with the direct intention of giving
a power of further imprisonment if there be further
default.] For that there should be a new order under
sect. 100. The judge has otherwise a power of per-.
petual imprisonment upon a single judgment. [Coleridge
J. Why should he not, as long as the debtor persists in
not paying what he has the means of paying?] That
construction would really amount to an indulgence to a
vindictive creditor. [Coleridge J. What harm can the
vindictive creditor do if the debtor will pay? Has not
a commissioner of bankrupt a power of perpetual im-

prisonment as long as the bankrupt refuses to answer?] The Legislature cannot have meant to give such a power to an inferior tribunal, especially as there is no appeal. No one appeared in support of the return.

Lord CAMPBELL C. J. I am of opinion that the prisoner must be remanded. The warrant of commitment is clearly good on its face; for it follows the statute (a). It recites a judgment, a summons, and that since the judgment the debtor has had means to satisfy the judgment. The validity of the commitment can therefore not be contested. Then we are required to look at the preceding commitments. But I find nothing in them precluding the proceeding on the last warrant, or shewing its illegality. It is perfectly consistent with all three that the judge, on the second and third summons, investigated the means of the debtor, and found that he had received money with which he might pay the debt, but that he on each occasion refused payment. If that appeared, I think the judge had, under sect. 103, the power then to order the debtor to be imprisoned for a space not exceeding forty days; for that would be a new default. If the debtor has the means of paying and refuses to pay, the judge has authority, again and again, to make out a fresh warrant of commitment. We must presume that the judge has done his duty. And I think he did so, if the debtor, having the means of payment, continued to refuse to pay. The judge exercised the power given to him by sect. 103, a very valuable power given by the Legis

(a) See Schedule of Forms to Rules of Practice for the County Courts of England, made in pursuance of stat. 12 & 13 Vict. c. 101. s. 12., and having the force of an Act of Parliament. Pollock's Practice of the County Courts, Appendix, p. 115.

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lature, and which will, no doubt, be exercised with discretion. Here is a debt of three pounds odd: the debtor is imprisoned, first for seven days, afterwards for forty, and then for forty more: and we must presume that the judge, in ordering these imprisonments, did his duty. Our only course, therefore, is to remand.

COLERIDGE J. I am of the same opinion. The case turns on the answers to be given to two questions. The first is as to the point raised by Mr. Francis, whether there can be more than one imprisonment at all upon what he calls the same ground. If one imprisonment exhausts all power which the judge has except under sect. 100, this commitment could not be sustained; for the power has certainly been exercised more than once. But I cannot discover the least foundation for such a construction. There might be, within the words of sect. 103, a 66 new fraud or other default" ejusdem generis with that upon which the previous imprisonments had been founded: it would not be the less new for being of the same kind with what had preceded. See how unreasonable the construction would be. A party refuses to pay: a judge passes probably a light sentence as for a first offence: then the party, by an imprisonment of seven days, is to acquire the power of retaining the means of paying without paying. I think it abundantly clear that, upon a new instance of default of the same kind with a former default, the judge has the power of imprisonment, and toties quoties. Then, secondly, does it sufficiently appear upon this return that the last commitment was for a new default? I think it does, when we make the fair intendment that the judge has done his duty, and when we take care not to strain the language either

way.
We must take the statement in the warrant to
be conclusive as to the facts. Now that statement is
that the debtor had, at the time of the commitment,
sufficient means, and refused to pay. Mr. Francis
requires us to assume that this is the first refusal, not
a new one. Why are we to do so? The words are
much more consistent with a new refusal. It would
be a curious construction to suppose a state of facts
which would make the judge's conduct unreasonable.

ERLE J. I am of the same opinion. Under sect. 103 the judge has power to commit for not exceeding forty days when there is a new fraud or other default. I think this is the proper form of commitment for such a case, and that it sufficiently follows the statutory form; there is no special form given for a commitment on a new default. There being thus jurisdiction, and the form being parliamentary, the prisoner should be remanded. Francis insists upon it that the default must be taken to be the same as that on which the first commitment was founded: but the commitments, to which he refers us, prove the contrary. We find in each a summons and a commitment: from which we naturally infer a new default on each occasion, giving jurisdiction,

Mr.

CROMPTON J. I am of the same opinion; and really I cannot see a doubt. Sect. 103 meant to meet a case of this sort it enacts that no imprisonment under sect. 99 shall satisfy the debt, nor protect the debtor from being again summoned for any new fraud or other default. This shews that after one default there may be another, as where the debtor, having money, persists in refusing to pay. There is nothing in any part of the E. & B.

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