Ferris v Martin [1905] HCA 65

Ferris v Martin [1905] HCA 65

The respondent, having elected to pursue satisfaction of her judgment through bankruptcy proceedings against the goods of the appellant, is irrevocably bound by that election and cannot subsequently execute against the appellant's person by writ of capias ad satisfaciendum. Section 24 of the Defamation Act 1901 does...

Source-derived case information.

Parties
Appellant: Ferris; Respondent: Manns; Levy & Fulton; Lambton, Milford, & Abbott
Jurisdiction
Australia
Judgment Date
27 June 1905
Procedural Posture
Appeal / Appeal From the Full Court Order in the Supreme Court of New South Wales
Legal Topics
Election of Remedies, Bankruptcy Procedure, Execution Against Judgment Debtors, Consolidation of Statutes, Relationship Between Bankruptcy and Defamation Laws
Defamation Bankruptcy Election of Remedies Bankruptcy Procedure Execution Against Judgment Debtors Consolidation of Statutes Relationship Between Bankruptcy and Defamation Laws

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Parties

Ferris

Appellant

Manns

Respondent

Levy & Fulton

Lambton, Milford, & Abbott

Procedural Posture

Appeal / Appeal From the Full Court Order in the Supreme Court of New South Wales

Legal Issues

  1. 1 Whether the respondent, having elected to proceed against the appellant's goods by bankruptcy, may subsequently take execution against the person of the appellant under a writ of capias ad satisfaciendum
  2. 2 Whether section 24 of the Defamation Act 1901 impliedly repeals section 10(3) of the Bankruptcy Act 1898 or otherwise affects the doctrine of election

Ratio Decidendi

The respondent, having elected to pursue satisfaction of her judgment through bankruptcy proceedings against the goods of the appellant, is irrevocably bound by that election and cannot subsequently execute against the appellant's person by writ of capias ad satisfaciendum. Section 24 of the Defamation Act 1901 does not displace or alter the common law doctrine of election, and the remedies remain mutually exclusive in this context.