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give damages in the nature of interest over and above the value of the goods at the time of the conversion or seizure in actions of trover or trespass de bonis asportatis, and over and above the money recoverable in actions on policies of assurance made after the passing hereof.
8 & 9 Vict. c. 127. 8. The wearing apparel and bedding of any judgment debtor or his family, and the tools and implements of his trade, the value of the same not exceeding 51. in the whole, shall not be liable to seizure under any execution or order of any court against his goods and chattels.
Wearing apparel, &c.
The Debtors Act, 1869.
32 & 33 Vict. c. 62.
No arrest for debt except in certain cases.
PART I.- Abolition of Imprisonment for Debt. (a) 4. No person shall be arrested or imprisoned for making default in payment of a sum of money.
Exceptions. (6) (1.) Default in payment of a penalty or sum in the nature of
a penalty other than a penalty in respect of any
contract. (2.) Default in payment of any sum recoverable before a justice (3.) Default by a trustee or person acting in a fiduciary
capacity (c) and ordered to pay by a court of equity any
sum in his possession or under his control. (d) (4.) Default by a solicitor when ordered to pay costs for mis
conduct, as such, or in payment of a sum of money when ordered to pay the same in his character of officer of the court. (d)
of the peace.
(a) For Part II. of this Act, see Part III. of this work.
(6) Crown debts are to be added to these exceptions: (Re Smith, 2 Ex. Div. 47.)
(c) Not a promoter of a company: (Phosphate Sewage Company v. Hartmont, 25 W. R. 743.)
(d) See 41 & 42 Vict. c. 54, infra. Sub-sect. 3 extends to the case of a trustee who has parted with the money before the order for payment: (Middleton v. Chichester, 40 L. J. 237, Ch.) Under this sub-section it is
(5.) Default in payment for the benefit of creditors of any
portion of a salary or other income in respect of the
bankruptcy is authorised to make an order.
Proviso: No person shall be imprisoned in case of any of the above exceptions for more than a year.
5. (a) Subject to the provisions hereinafter mentioned, and to power to cour the prescribed rules, any court may commit to prison for a term to commit in not exceeding six weeks, or until payment of the sum due, any person who makes default in payment of any debt or instalment (b) of any debt due from him in pursuance of an order or judgment of that or any other competent court. Proviso : Such jurisdiction shall only be exercised where it is proved to the satisfaction of the court that the person making default has or has had means to pay since the date of the order or judgment, and has refused or neglected, or refuses or neglects to pay the same. (c)
The jurisdiction given by this Act may be exercised by a judge at chambers.
Any court may direct any debt due from any person in pursuance of any order or judgment of that or any other competent court to be paid by instalments, and may rescind or vary such order.
Imprisonment under this section shall not operate as a satisfaction of the debt.
6. Arrest upon mesne process is abolished. Where the Where debtor plaintiff in an action in any of the superior courts of law, in about to quit
, which, if brought before the commencement of this Act the defendant would have been liable to arrest, proves, before final judgment, to the satisfaction of a judge of one of those courts that he has a good cause of action to the amount of 501. or upwards, and that there is probable cause for believing that the defendant is about to quit England and that his absence will materially prejudice the plaintiff in the prosecution of his action,
sufficient, on application for an attachment, to show that the debtor received the money " in a fiduciary capacity ” towards any person entitled to call upon him to pay: (Marris v. Ingram, L. T. 613; 13 Ch. Div. 338 ; 49 L. J. 123, Ch.)
(a) See sect. 103 of the Bankruptcy Act, 1883, post, Part III.
(6) In case of an order for payment by instalments, there may be a committal for default on each instalment: (Horsenail v. Bruce, 8 0. P. 378; Evans v. Wills, 1 O. P. Div. 229.)
(c) When on a motion under this soction to commit a defaulting debtor to prison, the judge has the proper materials before him, and is satisfied that the debtor has the means to pay, and makes the order asked for, the Court of Appeal will not interfere with the decision : (Esduile v. Visser, 41 L. T. 745.)
such judge may order the defendant to be arrested and imprisoned for not more than six months, unless and until he has sooner given security that he will not go out of England without the leave of the court. (a) Where the action is for a penalty or sum in the nature of a penalty other than a penalty in respect of any contract, it shall not be necessary to prove that the absence of the defendant from England will materially prejudice the plaintiff in the prosecution of his action, and the security given (instead of being that the defendant will not go out of England) shall be to the effect that any sum recovered against the defendant in the action shall be paid, or that the defendant shall be rendered to prison.
Discretion of judge in certain cases within the Debtors Act, 1869.
The Debtors Act, 1878.
41 & 42 Vict. c. 54. 1. In any case coming within either of the exceptions numbered 3 and 4 in the 4th section of the Debtors Act, 1869, any court or judge making the order for payment, or having jurisdiction in the action or proceeding in which the order for payment is made, may inquire into the case, and, subject to the proviso contained in the said section, may grant or refuse, either absolutely or upon terms, any application for a bill of attachment, or other process or order of arrest or imprisonment, and any application to stay the operation of any such suit, process, or order, or for discharge from arrest or imprisonment thereunder. (6)
(a) The defendant cannot be detained in prison after judgment signed ; (Hume v. Druyff, 8 Ex. 214.) A writ of ne exeat regno can be granted in those cases only which fall within this section : (Hands v. Hands, 43 L. T. 750.)
(6) The Debtors Act, 1869, bas, among its intended objects, the punishment of dishonest debtors. The Debtors Act, 1878, is intended to give a discretion to the judge where a debtor is within the penal clauses of the Dehtors Act, 1869, but may not in the judga's opinion, be guilty of a moral offence. Mere inability to pay is not in itself a valid ground for the exercise of the discretion given by the Debtors Act, 1878: (Marris v. Ingram, 41 L. T. 613; 13 Ch. Div. 338; 49 L. J. 123, Ch.) The policy of the Debtors Acts, 1869 and 1878, as to the imprisonment of defaulting trustees, whether vindictive or not in the case of a fraudulent and dishonest debtor, gives the court a judicial discretion in dealing with exceptional cases; therefore, where a trustee, who had erroneously misapplied trust funds by lending on an insufficient security, had been ordered to pay the amount so misapplied into court, and stated by affidavit that he had no means at present of complying with the order, the court refused to grant leave to issue a writ of attachment against him: (Hotroyd v. Garnett, 46 L. T. 801 ; 20 Ch. Div. 532; 51 L. J. 663, Ch.)
1 & 2 VIOT. c. 110. 14. If any person against whom any judgment shall have been Charging order. entered up in any of the superior courts shall have any
Government stock, funds, or annuities, or any stock or shares of, or in any public company in England, standing in his name in his own right, or in the name of any person in trust for him (a), a judge of one of the superior courts may on the application of any judgment creditor order that such stock, funds, annuities, or shares, or such or them, or such part thereof respectively, as he shall think fit, shall stand charged with the payment of the amount of the judgment debt and interest thereon, and such order shall entitle the judgment creditor to all such remedies as he would have been entitled to if such charge had been made in his favour by the judgment debtor. Proviso: No proceedings shall be taken to have the benefit of such charge until after six calendar months from the date of the order. (6)
15. Every such order shall be made in the first instance ex parte, without notice to the judgment debtor, and shall be an order to show cause only.
Such order shall, as regards the Bank of England, act similarly to a distringas, and as regards a public company shall restrain any transfer of stock, or shares standing in the name of the judgment debtor in his own right, or in the name of any person in trust for him.
If any such transfer be permitted after notice of the order, and before the same be discharged or made absolute, the corporation, or person or persons permitting such transfer, shall be liable to the judgment creditor for the value or amount of the property so charged, and so transferred, or such part thereof as may be sufficient to discharge his judgment.
No disposition of the judgment debtor in the meantime shall be valid as against the judgment creditor.
Unless within the time mentioned in the order sufficient cause be shown to the contrary, the said order shall, after proof of notice thereof to the judgment debtor, his (solicitor], or agent, be made absolute.
(a) Stock standing in the name of the Paymaster-General is within this section : (Hulkes v. Day, 10 Sim. 41.) By the 3 & 4 Vict. c. 82, this section is to extend to any interest of the debtor in such stock, &c., whether in possession, remainder, or roversion, and whether vested or contingent.
(6) Proceedings may, however, be taken, if necessary, to protect the subject matter of the charging order before the expiration of the six months : (Bristed v. Wilkins, 3 Hare, 235.)
Power to any such judge upon application of the judgment debtor, or any person interested, to discharge or vary such order, and award such costs as he may think fit.
17. Every judgment debt shall carry interest at the rate of 41. per cent. per annum from the time of entering up
the judgment until the same shall be satisfied, and such interest may be levied under a writ of execution on such judgment.
19. This section provides that a judgment shall be registered as therein mentioned in order to affect the lands as against purchasers, mortgagees, or creditors.
An Act to further Amend the Law of Property and to
22 & 23 Vict. c. 35. (a) Release of part 11. The release from a judgment of part of any
hereditaments of hereditaments
charged therewith shall not affect the validity of the judgment charged.
as to the hereditaments remaining unreleased, or as to any other property not specifically released, withont prejudice to the rights of all persons interested in the hereditaments or property remaining unreleased and not concurring in or confirming the release.
An Act to further Amend the Law of Property.
23 & 24 Vict. c. 38. (6) Land not to be 1. No judgment, statute, or recognisance to be entered up bound by judg- after the passing of this Act shall affect any land (of whatever writ of execution tenure) as to a bonâ file purchaser for valuable consideration, or
a mortgagee (whether such purchaser or mortgagee have notice or not of any such judgment, &c.), unless a writ or other due process of execution of such judgment, &c., shall have been issued and registered as hereinafter is mentioned before the ex on of the conveyance or mortgage to him, and the payment of the purchase or mortgage money by him. Proviso: No judgment, &c., to be entered up after the passing of this Act, nor any writ of execution or other process thereon shall affect any land of whatever tenure as to a bona fide purchaser or mortgagee, although execution or other process shall have been issued thereon and have been duly registered, unless such execution or other process shall be executed and put in force within three months from the time when it was registered.
(a) For other sections of this Act, see titles “ Leases,” “ Real Property (Miscellaneous Acts),” and “ Trustees, Executors, and Administrators.”
(6) For other sections of this Act, see titles “ Leases," " Limitation of Actions (Miscellaneous Acts)," and Real Property (Miscellaneous Acts).”