Gibbons v Spalding
| Jurisdiction | England & Wales |
| Judgment Date | 30 January 1843 |
| Date | 30 January 1843 |
| Court | Exchequer |
English Reports Citation: 152 E.R. 763
EXCH. OF PLEAS.
S. C. 2 Dowl. (N. S.) 1746, 811; 12 L. J. Ex. 185; 7 Jur. 21, 377.
GtBBONS v. sfalding. Exch. of Pleas. Jan. 30, 184,'i.-An order for the arrest of a defendant, under the i & 2 Viet. c. 110, s. :i, may be made on an affidavit of the plaintiff, that he has been informed and believes that the defendant is about to leave England, provided it state the name and description of the person from whom he has received such information.-On application to the Court to rescind an order for the arrest of a defendant, fresh affidavits may be used on both sides. [S. C. 2 Dowl. (N. S.) 1746, 811; 12 L. J. Ex. 185; 7 Jur. 21, 377.] An order had been made by Gurney, B., for holding the defendant to bail under 1 & 2 Viet. c. 110, s. 3. The affidavit on which the order was obtained, which was made by the plaintiff, stated " that the deponent had been informed by one Isaac Davis, of 97, Bond Street, in the county of Middlesex, whom he knew to be the intimate friend of the defendant, and which information the plaintiff believed to be true, that the defendant intended to leave England for Brussels, in the kingdom of Belgium, and that from day to [174] day it was uncertain at what time he would leave, and that he might even have left at the time of swearing the present affidavit." An application was subsequently made to the same learned Judge at chambers for the discharge of the defendant, under the Gth section of the act, but the summons was discharged. On a former day, (Jan. 11), .Thesiger moved to rescind the above orders, on the ground of the insufficiency of the affidavit. The intention of the legislature in passing the stat. 1 & 2 Viet. c. 110, wae to abolish arrests on mesne process in all cases except those provided for by the 3rd and 7th sections of the act. It is the duty of a party seeking to arrest a defendant under those sections, to bring his case within them by clear and legal evidence; and an order to arrest a party ought not to be made on ex parte and hearsay statements. In Harvey v. O'Meara (7 Dowl. P. C. 725), Coleridge, J., says, " It may often happen, and in this case it may so happen, that the means of securing the debt may be lost by a refusal to order the arrest; the Judge may wait for evidence of a design to leave the country till it is too late to prevent its accomplishment ; but still he must deal with the act as he finds it worded. Its general intent is to abolish arrests...
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