718 



DEBT 



manner. The right to appeal is against decisions in 

 point of law, and against the admission and rejec- 

 tion of evidence. The appeal is to a Divisional 

 Court of the High Court of Justice. It is taken by 

 requiring the judge to state a case for the opinion 

 of the higher court, and thereafter entering it for 

 discussion there. The appellant must give security 

 for the costs of the appeal, and ( if defendant ) for 

 the amount (both of principal and costs) contained 

 in the judgment. The right of appeal is not much 

 exercised, arid the parties have it in their power to 

 agree beforehand (m writing) that there is to be 

 none. Leave to appeal is required where the sum 

 sued for is less than 20. Before trial, cases may 

 be removed by Certiorari (q.v. ) to the High Court of 

 Justice, but that is in the discretion of the superior 



When judgment is for the creditor, and the order 

 for payment is not complied with, execution may 

 issue against the goods of the debtor. Although 

 imprisonment for debt was (in the general case) 

 abolished in England in 1869, it still remains the 

 law that in the county courts, in certain cases, 

 the debtor may also be imprisoned. The debtor 

 is summoned to show cause why he has not obeyed 

 the judgment. At this hearing ( whether the debtor 

 attend or not), the creditor may get an order to 

 commit, if he can show, to the judge's satisfac- 

 tion, that the debtor has had since the judgment 

 sufficient means to pay, and has refused to do so. 

 This imprisonment may be for six weeks, but it is 

 not held to be equivalent to payment. Of course 

 the debtor is protected by bankruptcy or liquida- 

 tion. 



Although it is competent to proceed in the county 

 courts for sums as large as 50, they are not much 

 used for sums above 20. When the debt does not 

 exceed 20, there is a certain compulsion on the 

 creditor to resort to the county court, for if he resort 

 to a superior court, and recover no more than that 

 sum, he will have no costs, unless he satisfies the 

 court that he had sufficient reason for taking that 

 course. In point of fact, there is only about one 

 case for a sum exceeding 20, for a hundred which 

 do not exceed it ; and the average amount sued for 

 is between 2 and 3. The law upon this ex- 

 tremely important practical matter is now con- 

 solidated in the County Courts Act, 1888. 



In Scotland, under the Small Debt Act, 1 Viet, 

 chap. 41, as amended in 1853, debts not exceeding 

 12 may be recovered in the Sheriff Small-debt 

 Court. The creditor takes two copies of his 

 account to the office of the sheriff-clerk for the 

 circuit in which the debtor lives ; from him he 

 obtains a summons, in which the day for the trial 

 is fixed ; and this summons he takes to an officer of 

 the court (sheriff-officer), who serves a notice, with 

 one of the copies of the account, on the debtor, at 

 least six days before the trial. The presence of a 

 vyitness at citation was dispensed with by the Cita- 

 tion Amendment Act of 1871, which also abolished 

 lockhole citation ; and under the Citation Amend- 

 ment Act of 1882, citation by registered letter 

 instead of by messenger-at-arms will be allowed in 

 the general case, it being formerly allowed only 

 where the debtor hid himself, or refused access, or 

 had gone for forty days. Both parties may employ 

 an officer to cite witnesses. The creditor must 

 appear at the trial, either by himself or by one of 

 his family, or by such other person as the sheriff 

 may permit. Law-agents require special permission 

 to appear, unless where both parties consent. If 

 the defender intend to plead a counter-claim, he 

 must cause a sheriff-officer to give a copy of it to 

 the pursuer, at least one free day before the trial ; 

 otherwise, there are no written pleadings. On the 

 clay fixed for the trial, if the debtor does not appear, 

 decree is given against him, with expenses, as a 



matter of course ; against which he can afterwards 

 be ' reponed ' only, on consignment of the expenses 

 and a sum of 10s. If botli parties appear, the judge 

 hears the case. If the pursuer or the defender have 

 clearly no good ground of action or defence, he 

 disposes of it at once ; but if not, he examines the 

 witnesses on oath. No record of the evidence is 

 taken. At any time before judgment, the case may 

 be remitted to the ' ordinary court ' of the sheriff, 

 where it is conducted by agents on written plead- 

 ings and written proof. Otherwise, the whole pro- 

 ceedings are concluded in one day, adjournments 

 not being permitted, except in special cases. After 

 judgment, there is no appeal, except on the ground 

 of want of jurisdiction,, malice, oppression, or wilful 

 neglect of the statutory forms, in which cases there 

 is an appeal to the Court of Justiciary. The judg- 

 ment provides for execution against the debtor s 

 goods. This process is often used for the recovery 

 of small rents. 



The Debts Recovery Act, 1867 (30 and 31 Viet, 

 chap. 96), has extended the Scottish small-debt 

 jurisdiction, with important alterations, to 50. 

 The class of debts that may be sued for between 

 12 and 50 has been limited to those which most 

 require summary proceedings namely, those which 

 prescribe if not sued for within three years, such 

 as all ordinary merchants' accounts, and accounts 

 for professional services or for servants' wages. 

 The principal differences between this and the 

 proper small-debt proceedings are, that agents are 

 allowed to appear ; that there are two days in 

 court, one at which the grounds of action and 

 defence are stated, and an adjourned one, at which 

 the witnesses are examined ; that the judge makes 

 a note of the pleas of the parties ; that a record is 

 kept ( if required ) of the admissions in fact and of 

 the evidence ; and that there is a right of appeal, if 

 the debt does not exceed 25, from the sheriff- 

 substitute to the sheriff, and if it exceed 25, also 

 to the Court of Session. If the judge be not asked 

 to take a note of the evidence, there is no appeal in 

 matters of fact. All the fees and costs, Whether 

 payable to the sheriff-clerk, the officers of the 

 court, or the law-agents, are distinctly stated in the 

 act, and must be hung up in every court. In other 

 respects, the proceedings are analogous to those in 

 the Small-debt Court, and, like them, may proceed 

 either at the principal town of the county, or at 

 one of the towns at which sheriffs circuit-courts are 

 held. 



In England and in Scotland there are other 

 courts which deal with the recovery of debts beside 

 the county courts. The Sheriffs Court of the City 

 of London has a jurisdiction similar in general to 

 that of the English county courts ; and there are 

 local courts, such as the Court of Passage at Liver- 

 pool, and the Manor Court at Bradford, which 

 exercise jurisdiction in small as well as other debts. 

 In Scotland, the magistrates of royal burghs, and 

 the justices of peace, possess a small-debt jurisdic- 

 tion for debts not exceeding 5 in amount. In the 

 latter case, the Royal Commission of 1870 recom- 

 mended a reform, especially as regards fees and 

 execution against goods. The widespread belief 

 that a corpse could be attached for debt was a 

 vulgar error. 



LAWS OF DEBTOR AND CREDITOR. In the 

 history of execution for debt the march of social 

 progress may be traced in earlier times. On the 

 one hand, lending is confounded with alms-giving ; 

 and the exaction of interest, and even of capital, is 

 regarded as an act of inhumanity towards the poor. 

 On the other hand, when the creditor's rights come 

 to be recognised in a legal sense, there seem to be 

 no limits set to them. If he is entitled to exact 

 the debt at all, he is entitled to seize the goods of 

 the debtor ; and if the debtor has no goods, he is 



