IMPRISONMENT FOR DEBT.

Southland Times, Issue 3467, 1 August 1879, Page 3

IMPRISONMENT FOR DEBT.

(To the Editor of the"-Ne^s ' por fnvor of the-E«iitbr of Southland Times.) -In his valuable epistle which appeared in' your issue of Saturday last, Mr Scandrett'is' evidently under the impression that he Has dug up something new which has hitherto., remained concealed in the depth of, ' Our Statute. Book, and he joyfnlly asks you-to reprint a remarkmade by Mr Simpson, acting Resident Magistrate of Dunedin, as reported in the Otago Daily Times, by way of a fortiori, in support of his own opinion, expressed in your columns on a former occasion. ■ To be candid, lam somewhat surprised at the writer exhibiting his want of knowledge of the subject on which he writes, by imagining that the Bench and Bar here are ignorant of the provisions of the Act to which he refers. Scarcely a week passes without defaulting debtors being brought before the RM. here on- a judgment summons, and, before this summons is issued, the judgment - creditor has to sign an application form in which the following' statement appears': — "And I undertake to prove, to > the satisfaction of the court at- the hearing, that the judgment debtor has or has had since the date, of- the judgment [or order] the means to pay the sum in lespect ot which he has made default,, and that he has refused or neglected, or refuses or neglects, to pay the said sum." If the judgment creditor Tefuses to sign this undertaking the tsummpns is not ; issue(]> . ,ll(Shall jri6\y;i advert/ yeryj briefly provisions of the " Imprisonment for Debt Abolition Act, 187_, lV ?as,Mr Scandrett has, on several occasions, called in question the administration of this Act by the R.M. here; The reason why I do. so is that I. am j aware thata magistrate or justiceuof tbe peace is not allowed publicly to replyto any such accusation, however erroneous or false. Admittedly the ' short title of this Act is somewhat jnisleadinsr, but the object of it' was to abolish imprisonment for debt; fiimplipitas except in such ea^es as defined: -ItrotJier words,~the 3rd section repealed or took away the prior powers which a. creditor had. against his debtor," in so v f ar v as related to arrestmentor imprisonment for making default inM -payment of .? a .sum of money,; ? .w,itb several exceptions. !P rior-49 the passing of this Act, an irate creditor had power to imprison his debtor and- keep his body i_ gaol till the debt was paid. - J lt'is;r;eadily observable that this Act i& a transcript^of' ; the ; English- Act,-" The Debtors' Act, 1869," with such alterations as the circumstances, and legislation of the colony required, and in r the interpretation of our own Act and'tb'e application . of its provisions, the-, leading decided English casesi correctly reported _mayi be _ safely taken as guides. The. five exceptions in the 3rd section, refer to something more tban simple debts, and aretreatedasimoral delinquincies; andthefe is. a proviso even to those exceptions ;. ; " that no person shall ; bcimprisp^ed in ..any case, excerpted Jrom Moperatio_ J of this', section- for a -longer . period than one yfear." The sth section of j this >4.ct ; reads jia .follows:--". Subject } :to.-| ter ; Dientionfed^ and to the prescnb)^//niles^any Court may ; commit to prison? for a term not exceeding ; three months, or until payment of the sum i ' d&MnHperson jwbor niakes:;de fault in payment anyßebl ? 4 or.ins|aimeiit dthny ) debt due r_rom ■' : hir_,' : in : ;p ufsua'fifee ' of any i order or judgment of that or any other . competent court," There are several pro ; visps-to this section^ .b.ut they.vrefer.to the: jurisdictions of the various i Courts, and howj theyxare^oibe, exercised.^Sections^and \ 7 regdate t t.tldo^OiJft;cpfvprP cedur^ ; » the i judgment creditor may appiy for a judg-j ment< summons, and it shall^ be -lawful to; issue BUC_ : , K ahd^ the judgmeiit-debtor is; brpught bef 6re the Court, and examined on; oath touching his estate -and effects, and as' to the property and means he has of satisfying such judgment: I now come to the most important part of this Att," in s"o far as this controversy is, concerned. Section 8 deals with the defaulting debtor, and the Court, upon yon- path, and the judgment •tfreWor"' tfr* other witnessesftouching- his means to pay the judgment debt, and if the" Court is J satisfied that the debtor was, or is, able to pay the whole -or part thereof, it must make an.order.accordingly, as may,' appear meat and just. It has been contended that .the operation of this section related to property or means, and its ap-' •plication.re lated only to /the; time that judgment was obtained up to the date of the hearing, and did not apply to prospective means which had to be acquired, or to the debtor's probable future ability. By 'strictly-looking at the purport of subsection 3 of section 6, and^subsection 5 of section 8, along "with the- provfsiohs *of 'section 10, this contention can scarcely be admitted, although it cannot be denied theie may be some- doubts on this point.' The latter section referred to makes provision that the Court may direct such judgment debt to be paid by, instalments, and may, from time £i to. time/rescind Or vary such order.' It -will ■'be 'observed that three months is the extreme period for imprisonment for a | judgment debt , under "this Act, and if a , >x-6mmital order is made, for payment' by instalments, and for every such default of i each payment, a certain term of imprison- ' ment, but in the aggregate not to exceed the three months. Por instance, if a committal order showed upon the face of it that the debtor was ordered to pay £50 by instalments of £1 per month, and in vr default of .each payment that he be im- - -prisoned for a term - of fourteen days) which in the aggregate would show 700 days' imprisonment, consequently icoram nonjudice would appear. The sum of the whole matter istbatin the m-eater number of cases the debtor is im 7 pregnable, >an& whatevermay be Jtus, means or ability to pay, tte has determined'not to obey the order- of the Court, and the leniency of the judgment, creditor, or that f ; ot Court.. 'is put' down,by^jny -misadministrationof Jhe.lAw. , Opinionum commenta delet dies ; naturce L jUdieio cmfirmat. >< _"'_?•'-'' . - • ' J. L: McDonald. InvercargiU, 29 July, 1879. '