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Colonial Cases

Hussein v. Mustan, 1885

[imprisonment for debt, arrest on mesne process]

Hussein v. Mustan

Supreme Court of the Straits Settlements
Sidgreaves C.J., 9 February 1885
Source: Cases Heard and Determined in HM Supreme Court for the Straits
Settlements, 1808-1890
(J.W. Norton Kyshe), Vol. 4, (1885-1890), Singapore, 1890, page 4

 

CHAWANA MAHOMED HUSSEIN v MAHOMED MUSTAN

PENANG

SIDGREAVES, C.J.

February 9, 1885

      A defendant who has been arrested in mesne process, under Section 422 B of the Civil Procedure Ordinance of 1878, and given security that he will not leave the jurisdiction without the permission of the Court, is at liberty without such permission immediately after the plaintiff has obtained judgment in the action.  The security bond is at an end no sooner such judgment is pronounced, and the sureties therein, cannot be made liable thereon for the departure of the defendant after the date of such judgment.

   The words "either . . . . or otherwise" in the aforesaid section, have no meaning, or at least do not extend the "prosecution" of the action beyond the final judgment; and though they are not found in the corresponding section of the English Debtor's Act [32 & 322 Vict., c. 62, s. 6] the effect of the two sections is the same, and the English cases on the latter, are authorities on the construction of the former.

   Yorkshire Engine Co., v Wright, 21 W.R. 16 [dictum of Bramwell, B.] approved of and followed.

   This was an action on a bail bond entered into by the defendant for one Shina Tamby.  The plaintiff on the 5th June, 1884, had commenced an action against the said Shina Tamby, and also procured his arrest, [under Section 422 B of the Civil Procedure ordinance 5 of 1878. [as amended by Ordinance 8 of 1880] on mesne process.  The defendant went bail for the said Shina Tamby, in a specified sum, and executed the bond herein sued on.  The bond, after reciting the action against Shina Tamby and his arrest as aforesaid, was confirmed to be of no effect "if the said Shina Tamby should not leave the jurisdiction of the Supreme Court, without the leave of the said Court, first had and obtained" There was noting in the bond to shew it was intended to be a security only till judgment, nor anything to mark its duration.  Shina Tamby put in no appearance to the action, and on the 28th June aforesaid, the plaintiff signed final judgment against him and took our execution.  On the 14th June, the said Shina Tamby left the jurisdiction for Larat, without first obtaining the leave of the court.  The plaintiff then sued the defendant, the surety, on the bond, to recover the sum specified alleging that the condition of the bond had been broken.

   Ross, for defendant contended, there had been no breach of the condition, as Section 422 B only intended to secure the presence up to judgment, and that arrest after judgment was provided for by Section 393 of the ordinance [as amended.]  He cited Re Wilkins, 8 L.R. Q. B. 197, and Hume v Duff, 8 L.R. Ex, 214, as in point.

   Van Someren, for the plaintiff conceded, that if Section 422 B was worded in the same way as Section 6 of the English Debtor's Act of 2869 [32 & 33 Vict., c. 32] on which the cases cited turned, they would be conclusive against him, though possibly it might at first sight be thought that those cases war distinguishable, as in neither of them had the defendant been bailed, but was in custody in  prison - such a fact however, made no difference as appears by the dictum of Cramwell, B. in Yorkshire Engine Company v. Wright, 21 W.R. p. 16.  Those cases however, in truth, were no authorities on Section 422 B as that section dealt with the absence of the defendant, ads materially prejudicing the plaintiff "either in the prosecution of his suit, or otherwise."

The cases cited only shewed that the "prosecution" of the action stopped with final judgment, but the words of Section 422 B meant by "either ... or otherwise" something beyond or other than the "prosecution" of the action: that Section 38=93 in no way interfered with this contention, as dull scope could be given to that section, by holding it applicable to arrests after judgment, where the defendant had not been arrested before; and full s cope could also be given to the three extra words in Section 422 B, as applicable to the detention of the defendant, or continuing his bail, even after judgment, where he had been arrested before.   The Legislature must have meant something by the insertion of those words, but the argument of the other side would treat them as if they were not in the Section, it gave no meaning to them at all.

   Sidgreaves, C.J. - This case turns on Section 422 B of the Civil Procedure Ordinance, which is as follows:-

When the plaintiff in any Civil proceedings in the Supreme Court, or proves, at any time before final judgment, decree, or order, by evidence or oath, to the satisfaction of the court that the plaintiff has a good cause of action or other valid claim against the defendant, and that there is probable cause for believing either that the defendant is concealing himself .... Or that he had removed or concealed any of his property .... Of having regard to his conductor or to the state of his affairs or otherwise, that he has  withdrawn, or is about to withdraw himself or any of his property from the Settlement for the purpose of avoiding the process of the Court, or under such circumstances as to induce the Court to believe that the ends of justice are likely to be defeated unless he be arrested; and that there is also probable cause for believing that the absence of the defendant  from the Settlement will materially prejudice the plaintiff, either in the prosecution of his suit, or otherwise, the Court may order such defendant to be arrested and imprisoned for a period not exceeding six months unless and until he sooner gives security .... That he will not go out of the Settlement without the leave of the Court.

   The question is, what is the meaning or effect of the words "either in the prosecution of his suit or otherwise."   Now looking at the whole scope and object of the Section, there can be no doubt it was meant to apply only to cases before final judgment, and if corroborative evidence is required to this fact, we have it in Section 393, which provides for arrests after judgment.  If Section 422 B had been worded as in the English Act, there could be no doubt as to the effect of the Section, but the words "either .... or otherwise" - words not to be found in the English Act, - are said to make a difference in the meaning to be given to the Section.  The cases cited by the Counsel for the defendant are conclusive to shew that the "prosecution" of the action terminates with final judgment, and the case of Yorkshire Engine Company v. Wright, cited by the counsel for the plaintiff, is still stronger and more applicable to the present case, as shewing the effect of final judgment even on the security bond entered intro by the defendant.

   The do these words "either ... or otherwise" make any difference?  I think not.  We are to look at the Section as a whole, and give no greater effect top these words, than the whole scope and object of the Section requires.  Judging from my own experience of our local legislature, and knowing how redundant expressions are sometimes put into ordinances, perhaps to satisfy some question that is raised, but without intending to alter the effect of the Section, I cannot but look on these words as of that character, and consider they really have no meaning.  In any case, I am of opinion those words do not extend the "prosecution" of the action beyond final judgment.  I consider there is no difference in meaning on this point between Section 422 B and the corresponding Section in the English Debtor's Act, and the authorities decided on the latter, are authorities on the former. 

   The bind was therefore at an end when final judgment was entered up against Shina Tamby, and he was not able to be held on bail after that date.  It is admitted he left the jurisdiction only after that date, and there has been therefore no breach of the condition of the defendant's bond.  The judgment must be for the defendant with costs.

   Judgment for defendant.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School