DKltT 



717 



eases is taken from the accruing of the cause of 

 HI-I Km i.e. the breach of contract; but if a 

 fmloequent aeknowladjnMBt in writing has l>een 

 ma. lr by the party liable, or In- li.-i- paid the debt 

 in unit, iir |i;iii| interest, the time will run from 

 Hiicli subsequent act. In Scotland, on the other 

 hand, obligations generally, and especially such as 

 cm-respond to the specialiy contracts of England, 

 are only subject to the long negative prescription 

 of forty yearn, but tradesmen's accounts and some 

 others prescribe in three years (see PRESCRIPTION ). 

 The debtor's summons, commonly used in England, 

 i- a summons to pay generally a trade debt (not 

 less than .~>0) within so many days, otherwise an 

 act of bankruptcy will have boon committed, and a 

 bankruptcy petition will be presented. 



IMPRISONMENT OF DEBTORS. Except in the 

 case of fraud, no debtor can be imprisoned in 

 England for a debt talow 20, exclusive of costs. 

 But such debtors, if ordered by an insolvent or 

 county court to pay the debt by instalments, or 

 otherwise, may, if they make default, be committed 

 by the court to prison for forty days. In Scotland, 

 the limit below which imprisonment for debt is in- 

 competent is 8, 6s. 8d. If a debtor escapes after 

 arrest, and before imprisonment, the officer of the 

 law in charge of the process is liable for the debt. 



In England, imprisonment for debt was abolished 

 by the Debtors Act, 1869, except in certain cases, 

 tin- most important of which are those of a default- 

 ing trustee and of a judgment debtor who is able, 

 but refuses to pay. In certain actions for 50, 

 defendants about to leave the country may be im- 

 prisoned, and under the Absconding Debtors Act, 

 1870, insolvent debtors may be arrested to prevent 

 their evading bankruptcy proceedings by going 

 abroad. In Scotland, imprisonment for debt was 

 abolished by the Debtors (Scotland) Act, 1880, 43 

 and 44 Viet. chap. 34, generally known as Cameron's 

 Act ; except in the case of taxes, fines, or penalties 

 due to the Queen, and rates and assessments law- 

 fully imposed, and also sums decerned for aliment. 

 By the Civil Imprisonment (Scotland) Act, 1882, 

 45 and 46 Viet. chap. 42, imprisonment was further 

 limited, ( 1 ) in the case of assessments, to a period 

 of six weeks ; (2) in the case of aliment, to debtors 

 wilfully failing to pay, though possessed of means, 

 or being able to earn the same. These acts do not 

 exclude imprisonment where a debtor is in medi- 

 tatione fugte, or where he refuses to perform an 

 obligation ad factum prvestandum. What is known 

 in Scotland as a fugie warrant is granted where it 

 appears that a debtor, in a debt above 8, 6s. 8d. , is 

 about to leave the country without providing for its 



Savment. Security must be given to present the 

 ebtor when decree is obtained, so that he may be 

 charged to pay. It is thought this remedy does 

 not apply to foreigners travelling through Scotland 

 for pleasure. 



In the United States originally imprisonment of 

 debtors was adopted as a part of the common law, 

 but at the present time imprisonment for debt, 

 except in case of fraud, or of an absconding debtor, 

 is believed not to exist in any of the states. Con- 

 gress, empowered by the United States Constitution 

 to make a uniform bankrupt law, exercised this 

 power, and subsequently repealed the law of impris- 

 onment (see BANKRUPTCY) ; and now, by Revised 

 Statutes 990 and 991, no person can be imprisoned 

 for debt by any process issuing out of the courts of 

 the United States, in any state where by the laws 

 of the state imprisonment for debt has been 

 abolished. Most of the states, by constitutional 

 provision ( either by Article of the Constitution, or 

 l>y Declaration in Bill of Rights), have prohibited 

 arrest or imprisonment for debt, while the other 

 states, either by direct statutes prohibiting im- 

 prisonment for debt, or by poor debtors laws, or by 



insolvent laws, secure the same result ; it being 

 held to In- against public policy to deprive a man, by 

 imprisonment, of the power to pay li- debt*, and 

 make him a direct charge upon the state. These 

 statutes and constitutional provision* are not in con- 

 flict with the provision of the I'nited Stall* Condi- 

 tiition, prohibiting the states from making any law 

 impairing the obligation of contracts, as imprison- 

 ment for debt is no part of the contract ; but they 

 do not in general apply to arrest in actions for tort. 

 In some states, statutes providing for the ai rest of 

 a defendant in actions for breach of promise have 

 been held to be unconstitutional, as in conflict with 

 the provisions of state constitution prohibiting arrest 

 for debt, that provision applying to mejttie as well 

 as final process. If a person in custody of the court 

 is discharged by giving bail for the payment of a 

 fine or other money within a certain specified time, 

 the bail may be forfeited, but no commitment can 

 ! made for the payment of the fine, as that would 

 be imprisonment for debt, but a judge may im- 

 prison for personal examination in act of execution. 



RECOVERY OF DEBTS. With respect to the 

 recovery of debts, if the debt exceeds 50 in 

 amount, the creditor must, in England, proceed in 

 one of the superior courts of law ; anu, in Scot- 

 land, he may proceed either before the superior 

 court or before the sheriff-court. If the debt do 

 not exceed 50, the creditor may proceed in the 

 English county court, or the sheriff-court ; if below 

 25, in Scotland he must proceed in the sheriff- 

 court. 



In England, the first step to recover a debt not 

 exceeding 50 in the county court, is for the 

 creditor to go to the registrar of the district within 

 which the defender resides, or to the jurisdiction 

 of which he is on some other ground amenable. 

 He there fills up a printed form, called a plaint, 

 shortly stating the claim and the ground of it. 

 The registrar upon this issues a summons, and 

 gives it to the bailiff of the court, who serves 

 a copy of it on the defendant. This summons 

 names a day on which the parties must appear 

 before the judge. No written pleadings are in 

 general necessary ; but if the debtor has any special 

 defence such as, that he has a counter-claim 

 against the plaintiff, or that he (the defendant) 

 was a minor at the time the debt was contracted, 

 or that he has been discharged under the bank- 

 ruptcy acts he must give the creditor notice in 

 writing five days before the hearing. If he simply 

 denies the debt, he has nothing to do but to attend 

 the hearing, with what witnesses he may require. 

 If the witnesses are not likely to come voluntarily, 

 summonses to enforce their attendance (as well as 

 the production of documents) may be obtained at 

 the registrar's office. At the hearing, the judge 

 (unless a jury have been required ) proceeds himself 

 in a summary way to try the cause. He examines 

 the witnesses on oath, keeping no record of the 

 evidence ; and, on hearing tne parties, gives judg- 

 ment at once. If he decides for the plaintiff, he 

 may make the sum payable at once, or in cases 

 below 20, by instalments. The costs are accord- 

 ing to a fixed scale, which may be seen in the court 

 or in the registrar's office. 



There are provisions for parties having their case 

 tried by jury, and also for appeal on questions of 

 law. Either party who wishes it, may ask for a 

 jury ; and if the sum claimed exceed 5, the demand 

 must be complied with. If there be a jury, the 

 number of jurymen is five, and their verdict must 

 be unanimous. The party dissatisfied with the 

 verdict may ask for a new trial, and the judge, if he 

 thinks right, may grant it on such terms as he 

 thinks reasonable. This power to try by jury is 

 used very rarely indeed less than one per cent, of 

 all the cases which go to trial being tned in that 



