don v i ei) a

don v i ei) a - [1924] HCA 10 - HCA 1924 case summary — Zoe

[63]

The question presents itself very concretely, and we are not able to concur in the view that the decision should be deferred. Harvey J., notwithstanding the motion was interlocutory, had before him the plaintiffs' statement of claim and their affidavit showing the fullest case they could ever make. If, on that case, sitting as a Judge of first instance, he felt unable to make up his mind as to the law, accepting the plaintifis' facts at their fullest, he would, of course, have had to consider the question of discretion. But as his Honor took a clear view against the plaintiffs, he adopted what we venture to think a most commendable course in the public and private interests. Having formed a distinct opinion, he did not trouble himself with immaterial questions of discretion, and, believing the law to be against the plaintiffs, he said so, and dismissed the motion on that ground. Having made up his mind as to the law, any other course than that which he took would have been a hardship to the parties and obstructive to the business of his Court. It would have been leading the suitors on to pursue a litigation he felt to be useless and a squandering of public and private time and money. His decision, equivalent to a judgment on demurrer, if unappealed from, in effect ended the suit, and ended it mercifully and in accordance with all modern policy of shortening litigation. But the appellants have come to this Court, the highest Australian tribunal, to obtain a decisive ruling as to whether the law is, as held by Harvey J., fatal to their success in any case. If the law be so, then Harvey J. was right, and there remains nothing upon which discretion as to granting an injunction or its equivalent could operate. That discretion can only arise if Harvey J. be wrong. His Honor, as a Judge of first instance, had and exercised a discretion in one sense, a very different sense, and a very important one. He had a real discretion either to decide the point outright or to leave it undetermined. He chose the former course; and, unless he is to be denied the right of choosing that course and to be overruled as to that, this Court has, in our opinion, no option but to pronounce on the question of law.

[74]

for detention of the said documents." That is, as to the value, in accord with par. 15 of the appellants' statement of claim, allowing for a difference of threepence between the two statements. The judgment following the verdict was for the return of the deed and other documents or their value fixed at £1,049 13s. 4d., and for the sum of one shilling damages for detention. It is, therefore, incontestable, both from the statement of claim in this action and from the affidavits on both sides, that the sum of £1,049 13s. 4d. was made up by the jury by adding £809, the principal sum owing to Mrs. Loomes, to £240 13s. 4d. interest at 7 per cent per annum from the last payment of interest by Dennis up to the date of the writ, that is, over five years' interest, and fixed that as the " value " of the deed and other documents. Eventually, on 6th July 1923, Mrs. Loomes, in order to compel the respondents to pay the value so assessed, issued a bankruptcy notice claiming £1,216 9s. 9d., being, as she says, £1,049 13s. dd. and £166 16s. 5d. for costs of action. The amount so claimed was paid to her personally. When that was paid, Mrs. Loomes had received back every penny she had lent, and every penny of interest she claimed up to the date of the writ, whether her deed entitled her to it or not. She had manifestly asked the jury to assess the value of her deed, &c., by the standard of repayment of the money owing by Dennis with interest to date of writ. She states in her affidavit that the jury did not give further interest because they could not go beyond the date of writ. That, which is obviously a swearing as to law, is an error; but, employing an argument she vainly, in our opinion, seeks to use against the appellants, if the value so assessed was less than she was entitled to, she did not appeal, and, on the contrary, accepted the assessed sum as the " value," which necessarily means in such a case as the present the full value, and she is bound by law to regard that as the true value. After paying that sum to Mrs. Loomes, Messrs. Heavener & Chapman wrote to her intimating that they proposed to take steps to obtain the amount from Dennis, and asked her to allow her name to be used, offering at the same time an indemnity. This was

[84]

1852, in Crossfield v. Such (1), the same learned Judge pointed out that damages for detention means damages for delay, and the amount depends upon whether the plaintiff has sustained any damage. But, as he reiterates (2), "' the plaintiff may have the usual judgment to recover them or their value, and damages for their detention." The judgment assumes as a basis that " value" is not " damages." After the Common Law Procedure Act 1854 the law remained the ~ same, except that the option was given to the plaintiff instead of to the defendant (see Bailey v. Gill (3) ). That is to some extent reproduced in sec. 136 of the New South Wales Act. By sub-sees. 1 and 2 of that section the plaintiff may enforce specific delivery if that be possible. If, however, that is refused or impossible, then and then only can a writ of fieri facias be issued for the " value" of the goods without prejudice to issuing execution for costs and for "the damages awarded for the detention of the goods." The inherent distinction is thus maintained between the " value" and "damages." This law is very distinctly stated by Mellish L.J. in In re Scarth (4). That was a bankruptcy case. Green sued Searth for detinue of a lease, and the value was found by the verdict to be £100. The plaintiff, without issuing execution, proved for £100 in the bankruptcy. Whether he had a right to do so depended on the nature of the verdict in detinue. The Lord Justice stated that nature ; and proceeded (5): '' All this shows that until execution has issued, a judgment creditor in an action of detinue is unable to get the money, and that the property in the goods remains in him." And as, in the words of the Lord Justice, the plaintiff "could not be entitled to both the goods and the money," the Court held that prior to issue of execution no debt existed in respect of the £100. But the principle underlying Scarth's Case is still deeper than the facts there required. The mere issue of execution is not sufficient to divest the plaintiff of the property in the goods. Brinsmead v. Harrison (6) is a case of unquestionable authority. Willes J. held (and it is now a doctrine beyond question) that it is not judgment nor is it issue of execution, but it is the payment of

[87]

But he also held, and this is the decisive factor in the case, that the principle was that it was in that case in effect a sale of the goods. He adopted the maxim Solutio pretii emptionis loco habetur. So it was also held by Jessel M.R. in Ex parte Drake; In re Ware (1), where he said of Brinsmead v. Harrison (2) that "the theory of the judgment in an action of detinue is that it is a kind of involuntary sale of the plaintiff's goods to the defendant." That must always be so in detinue, because it is always the value and never damages, except for the detention. Mr. Durnford's note (a) to Mockford v. Taylor (3), as to the reason why trover and detinue could not be joined, says: "Not only the pleas, but the judgments also, are different : in trover, only damages can be recovered, but in detinue the things themselves, or their value, may be recovered." In trover the damages may or may not be the value. If the value is given as damages, then, as Willes J. says in Brinsmead vy. Harrison (4), satisfaction of the damages will be solutio pretii. Such would be the case, as suggested by Alderson B. in Loosemore v. Radford (5), where the jury gives in detinue of deeds the full value of the estate to which they belong by way of damages, and the money is paid. But the damages in trover may not be the value of the property. They may be calculated on some other basis, as delay, injury or otherwise. Instances are given in the note to Holmes vy. Wilson (6). But a point to be borne in mind is that the party who alleges that the full value has not been awarded must establish the fact. That is shown by one of the cases there cited, namely, Field v. Jellicus (7), where the question was whether the damages awarded for trespass in taking and carrying away cattle were based on the value of the cattle or were for the mere injury of trespass only. It is there said: '' There is no averment that the damages in the first action were given for the trespass only, nor does it appear from what the forty shillings were given, but by supposal and conjecture." So that, even in trover, the argument addressed to us that the damages

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Judgment (117 paragraphs)

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