TITLE VIII. ENFORCEMENT OF OBLIGATIONS. CHAPTER I. WE have now considered the mode in which ordinary obligations, including those contained in bills and promissory-notes, are constituted, transmitted, and extinguished; and we shall proceed to examine the various modes in which, when necessary, lawful force is applied for compelling the fulfilment of such obligations,—that is, the circumstances and manner in which the law steps in, and the proceedings which may be adopted under sanction of the law, in case the debtor or obligant refuses or is unable to fulfil his obligation, or to comply with the decree of the Court against him. In such cases, both the debtor's person and estate may be attached or affected at the instance of his creditor; but the law does not allow the creditor to proceed either at his own hand, or in his own name. The steps which may competently be taken have a certain degree of violence in them; authorizing, on the one hand, the apprehension and detention of the debtor's person, and, on the other, the forcible withdrawal from him of the control, and finally of the actual property, of his estate, unless he shall fulfil his obligation; and although these steps are purely of a civil character, and proceed on the petition or at the instance of the private party, that is, the creditor, they run either in the name of the Sovereign, or of a Court having jurisdiction, and are executed and enforced by public officers only. The steps here referred to are, in England, termed writs of execution; in Scotland, they are called diligence; a term, the origin of which, as applicable to such DILIGENCE. writs, does not appear to be very clearly known. Lord Stair's explanation, that they are called diligence, because they excuse the users thereof from negligence,-is thought to be no other than an ingenious conjecture by Mr. Ross,1 who says the word is purely French, and is the ordinary practical term, synonymous with the word 'pursuit,'-sometimes meaning the process itself, and at other times the execution. Lord Stair draws a 1 Ross, i. 234. REAL AND When distinction between diligence and executorials, which, Mr. Ross says, is From the undoubted influence of French customs upon judicial forms and practice, during a pretty long period in this country, it is natural to suppose that our word diligence' is immediately derived from France; but, probably, the origin of the word used both there and here is the Latin word diligentia,' in the sense of earnestness or eagerness. The proceedings by which alone force could be employed, in order to bring about the payment of a debt, or fulfilment of a decree, and by the employment of which a creditor would evince his determination to recover his debt, and a debtor would be made immediately to employ his utmost efforts to satisfy the claim, might well be regarded as the only evidence of earnestness. Viewed as a practical matter, the definition given by Professor Menzies1 appears to be very satisfactory, viz., 'Diligence is the legal procedure, by which a creditor strives to obtain performance of his debtor's obligation.' Diligence is divided into real—that is, against the debtor's real or heritable estate, or which requires a real right in such estate as its warrant; and personal-that is, against his person, and personal or moveable estate; though, in a certain sense, diligence against the personal estate ought to be considered as real diligence. The proceedings applicable to diligence against the heritable estate will be considered in connexion with heritable or real rights. We shall, at present, confine our attention to diligence against the person and personal estate; not including poinding the ground, which, though affecting only moveable or personal effects, is available exclusively to creditors holding heritable or real securities over the ground. A great change, in regard to the forms of procedure applicable to ordinary cases of personal diligence, was introduced by the Personal Diligence Act of 1838.2 But, substantially, the mode of proceeding thereby authorized is of the same import as that which was superseded. And the consideration of the older forms will greatly facilitate the understanding of the forms introduced by the Act, and now in general use. 1 Menzies, p. 285. 21 & 2 Vict. c. 114. FOR DEBT IN BURGHS. These older forms, it may be also observed, are not abolished. They may competently be adopted; and I think it of importance to examine them, and, before doing so, to touch very briefly on the history of the power of imprisonment for debt in Scotland. That power appears to have been HISTORY OF admitted only with difficulty, and by slow degrees. We find it allowed IMPRISONMENT in royal burghs, under the Act of Warding, a form of procedure sup- SCOTLAND. posed to have been introduced by a Statute of Robert Bruce;1 and IN ROYAL which, in such burghs, is still in use. The imprisonment, in such cases, proceeds on a decree of the magistrates. But not only was the Act of Warding confined in its operation to royal burghs, but the diligence against the person even there was not authorized as a first step of execution. The form bears (what was at one time, no doubt, a reality, though now a mere fiction) that the officer has reported on oath, that he has sought for moveables in order to poind them, that is, to set them apart with a view to their being sold, and the creditor paid out of the price, but has found none; and thereupon authority is issued to him by the magistrates to put the debtor's person in ward, there to remain until he shall make payment of the debt. Passing beyond royal burghs, the first case in which we meet with authority to imprison is that of the non-fulfilment of an obligation ad factum præstandum. And here the warrant to imprison was issued as a first step of diligence, and without discussion of the obligant's moveables being previously required. In the case of ordinary debts, however, the spirit of the law appears to have been very averse to acknowledge the right of imprisonment. This may in some measure be accounted for by the fact, that the feudal law was practically the law of the land. Imprisonment, when it took place, deprived the superior of the services of a vassal or dependant; and superiors, as we know, were very jealous of any interference with their rights and privileges. But the power of imprisonment, already known in burghs under the Act of Warding, and beyond burghs in reference to obligations ad facta præstanda, came to be a desideratum as to all obligations; and the Church Courts-very CHURCH powerful at the period now referred to-were made available as the means of obtaining that power in reference to ordinary debts. The Church having had the right to imprison those who disobeyed her injunctions, it became usual, before the time of the Reformation, to take obligations for payment of debt under sanction of an oath by the debtor, and containing consent to his excommunication on failure to pay. By this means the matter was subjected to the cognizance of the Church Courts; and if the debtor failed to pay, if he did not fulfil what he had sworn to do, he was excommunicated, letters of poinding of his moveables were executed, and also letters of cursing against himself personally. Under the latter, he was charged to pay the debt, that is, to perform his oath within forty days; and in case of failure, or of disobedience, as it was called, he was denounced rebel to the King and 1 2 Rob. I. c. 19. * Marshall, 8th March 1803, M. App. Burgh Royal, No. 14. COURTS. COMMISSARY COURTS. LETTERS OF FOUR FORMS. 1584, c. 139. Church; and letters of caption were issued for his imprisonment and detention until he should pay the debt. The power of the Church was abolished at the Reformation; but, the Commissary Courts having been shortly afterwards instituted, it was ordered, in the instructions issued by the Queen to the Commissaries of Edinburgh in 1563,' that, on production to the Court of Session of decrees of registration from the Commissaries, the Court of Session should issue letters in the four forms (letters of four forms), being the letters on which imprisonment, in respect of obligations ad facta præstanda, was then in use to be authorized; or letters of poinding for fulfilling the decrees, as wer wont to be gevin upon persounis quhilkis of befoir lay xl. dayis under cursing.' A copy of the letters of four forms will be found in the Appendix to Lord Kames' Historical Law Tracts. They directed four successive charges to be given to the debtor, at intervals of three days each. These letters, which, as we shall see, were the foundation of the diligence, authorizing detention and imprisonment, could thus be issued in civil cases in two modes; viz.,―(1.) directly under obligations ad facta præstanda; and (2.) on the decrees of registration of the Commissaries of Edinburgh; and in the latter case, whether the registered obligation was for performance of a fact, or for payment of a debt. The form of proceeding, under decrees of registration of the Commissaries, was soon afterwards made competent under those of other Courts; the Statute 1584, cap. 139, having enacted that letters of horning (being the first step in order to imprisonment), as well as letters of poinding, the one without prejudice of the other, should follow on decrees of the Supreme Court, as well as on decrees of other Judges to which the authority of the Lords of Session should be interponed, whether the same were for liquid sums, or ad facta præstanda. The first step, in getting rid of the necessity of the four successive charges required by the letters of four forms, is thought to have been taken when, in clauses of registration, consents were inserted that letters of horning should be directed on a single charge. The consequent decrees of registration were held to warrant such letters accordingly in these cases. But the complicated procedure, under letters of four forms, still remained applicable to the ordinary decrees of the Court of Session, as to which there was no consent to execution on a single charge; and the manner in which the authority of that Court was interponed to the decrees pronounced by inferior judges was very circuitous,--the creditor being under the necessity of raising an action in the Supreme Court, in which he produced the Inferior Court decree, and obtained another decree in similar terms, called a decree conform,' on which last the letters of four forms were raised. These proceedings were very cumbrous and inconvenient; and, in the end of the sixteenth and beginning of the seventeenth centuries, a series of Statutes was passed, by which the Court of Session was 1 Balfour's Practicks, p. 658. authorized to issue letters of horning on a single charge of fifteen days, on the decrees of the different inferior Courts. Instead of the proceeding by means of a 'decree conform,' the authority of the Court of Session was directed to be interponed in these cases summarily, on production of the Inferior Court decree; and came to be granted by a deliverance or interlocutor on a petition, or, as it is usually called, a bill, addressed to the Court by the creditor. The same summary form of procedure, allowed by these Statutes as to ordinary decrees by inferior Courts, was also adopted, without statutory authority, under the decrees of registration of such Courts. The old method of proceeding by letters of four forms having, however, been still allowed to remain, in the case of the ordinary decrees of the Supreme Court, the Court itself at last abolished them by the Act of Sederunt, 23d November 1613,' by which letters of horning were appointed to pass on all the Court's own decrees, as they had been previously allowed by the Legislature on those of inferior Judges. The general use of the letters of horning came also to supersede the letters of four forms, even when the obligation was simply ad factum præstandum. The letters of four forms whilst in use, and thereafter the letters of horning, were the first steps in the procedure having in view the imprisonment of a debtor at the instance of his creditor. By the 3d and 4th articles of the letters of four forms, the debtor had the alternative given him of entering himself a prisoner in one of the Sovereign's jails. On his non-compliance with these charges, the letters enjoined him to be denounced rebel, and declared his moveables to be confiscated to the public use, and letters of caption were then issued for his apprehension and imprisonment. And here a remarkable peculiarity in the forms of procedure requires to be noticed, as tending to instruct both that the spirit of the law was hostile to the right of imprisonment for civil debt, and that strong ground was at first thought necessary on which to proceed to extremities with the debtor. If the debtor acted on the alternative pointed out in the 3d and 4th articles of the letters of four forms, by putting himself in ward,-there was no need of any further writ against him. But, in case of his failing to do so, the letters appear to have contained no authority to apprehend him. The simple course would have been, as in the act of warding, to grant authority to imprison him, and detain him till he should make payment; as that was truly the object aimed at. But, except within a royal burgh, the FICTITIOUS non-payment of an ordinary debt was not then considered a sufficient ostensible ground on which to imprison a debtor; and, the order to make payment being under a writ in the Sovereign's name, and sanctioned by the Sovereign's authority, the device and fiction were resorted to of holding that the non-payment amounted to the crime of rebellion against the royal authority. Accordingly, after the expiry of the time allowed to the debtor to pay the debt, if he did not pay, he was said to fail to obey the command of the Sovereign--he was denounced a rebel, 1 Preserved in Spottiswoode's Practicks, pp. 149, 150. REBELLION. |