Order.]-If the judge is satisfied by the evidence CHAP. XIII. adduced before him, that the debtor either then has, or Order. since the date of the order or judgment has had, the means to pay the judgment debt, or instalment of a judgment debt, in payment of which he has made default, and has refused or neglected or refuses or neglects to pay it, he may make an order committing the debtor to prison for any term not exceeding six weeks (x). The order can be made only by the judge or his deputy. It must be made in open court; and it must show on its face the ground on which it is issued (y). It must be in the prescribed form, and must bear date on the day it was actually made by the judge, whatever the date of its issue from the registrar's office (z). The order shows on its face the sum, by payment of which, before he is actually delivered into the hands of the gaoler, the debtor may escape imprisonment. This may include not only the original judgment debt and costs up to judgment, but any costs incurred by the plaintiff in endeavouring to enforce his judgment (a). The order is in force for a year from its date (b). stalments. Order for Payment by Instalments.]-The court may, Order for payupon the hearing of a judgment-summons, make an order ment by indirecting the amount of the judgment to be paid by instalments, and may from time to time rescind or vary such order (c). And where such an order is made by a court other than that in which the original judgment was obtained, all future payments under the new order must be made into, and all executions issued by the court making the new order, not that in which the original judgment was obtained (d). Where from sickness or any other (x) 32 & 33 Vict. c. 83, s. 5. (y) Ibid. (z) Rule 16, January, 1870. Sect. 102 of 9 & 10 Vict. c. 95, which still remains unrepealed, enacts, that when an order of commitment has been made, the clerk of the court shall issue a warrant of commitment, directing the bailiff to arrest the debtor. This section contemplated a warrant as something distinct from the order, and it was framed to meet the old practice under which the order was made by the judge orally, not in writing. It is plain that under the new practice (a) Rule 4, May, 1870. PART III. Concurrent orders. To what prison. Execution of. sufficient cause the debtor is unable to pay the instalments ordered, the court may suspend the order, as it might under the same circumstances suspend the original judgment from execution against the debtor's goods. See ante, p. 158. Concurrent Orders.]—Orders of commitment against the same party may be issued concurrently into one or more districts; but the costs of more than one warrant will not be allowed against such party unless by order of the judge (e). To what Prison.]-By the 9 & 10 Vict. c. 95, s. 98 (ƒ), defendants committed under that section were to be committed to the common gaol or house of correction of the county, district or place in which the party summoned resided, or to any prison provided as the prison of the court (g). By the later act, 12 & 13 Vict. c. 101, s. 1, defendants might be committed to the common gaol of the county, &c. in which the party or defendant was resident, or to any other gaol or debtors' prison for the same county, &c., which by declaration of the Secretary of State is allowed, so long as such declaration is in force; or to any prison provided as the prison of the court under sect. 49 of 9 & 10 Vict. c. 95 (h). And as sect. 5 of 32 & 33 Vict. c. 62, is incorporated with the County Court Acts, the rules as to the prison to which a debtor was to be committed under the old powers apply to committals under the 32 & 33 Vict. c. 62, s. 5. The high bailiff and bailiffs to whom the order of commitment is issued are empowered to take the body of the (e) Rule 20, January, 1870. Repealed by 32 & 33 Vict. c. 83, s. 20. (g) 9 & 10 Vict. c. 95, s. 49, p. 400. (h) When this section was passed, a judgment debtor could only be summoned to the court of the district in which he resided, and no doubt could arise as to the prison to which he could be committed. He may now, under sect. 48 of the 19 & 20 Vict. c. 108, be summoned, by leave of the judge, to the court in which the judgment was obtained, and it would appear that the judge must commit him to the prison of the district in which he resides; so that as in every case, whether he appears or not, the prison of the district in which he resides is that to which the judge has alone power to commit him, the warrant should be sent for execution to the high bailiff of that district; and if he is not then in that district, it can be sent from there into the district into which he may have gone, under the provisions of section 104 of the 9 & 10 Vict. c. 95. As to the power of the Secretary of State to authorize the use of gaols, see also 12 & 13 Vict. c. 101, s. 3, and 19 & 20 Vict. c. 108, s. 74. person against whom the order was made, and all constables CHAP. XIII. and other peace officers are to give their aid in executing it, and the gaoler or keeper of every gaol, house of correction and prison, mentioned in the order, must receive and keep the defendant therein for the specified number of days, not exceeding six weeks from his arrest, or until he is sooner discharged by due course of law (i). Care must be taken to execute the order against the right person; if the plaintiff direct its execution against a person not named in it, he is liable in trespass (k). The order must be executed within the year during When. which it is in force (1); but if the debtor be taken under it within the year, he may be detained thereunder for the term for which he was committed, notwithstanding such term may not expire until after the expiration of the year (m). Discharge from Custody.]-When an order of com- Discharge mitment for non-payment of money is issued the defendant from custody. may, at any time before he is delivered into the custody of the gaoler, pay to the bailiff the amount indorsed on the order as that on the payment of which he may be discharged; and on receiving such amount the bailiff must discharge the defendant, and must within twenty-four hours after receiving the amount pay it over to the registrar (n). The sum indorsed on the order may be paid to the registrar of the court from which the commitment order was issued, or to the gaoler in whose custody the prisoner is. Where it is paid to the registrar he is to sign and seal a certificate of payment, and upon receiving such certificate, by post or otherwise, the gaoler, in whose custody the prisoner is, must forthwith discharge the prisoner. And where it is paid to the gaoler, he must, upon payment to him of the amount, together with costs sufficient to pay for transmitting the amount to the court under the order of which the prisoner was committed, by post office order, sign a certificate of payment and discharge the prisoner, and such costs of transmission are part (i) 9 & 10 Vict. c. 95, s. 102, p. 437. (k) Whalley v. M'Connel, 13 Q. B. 903; S. C., 19 L. J., Q. B. 162; decided under sects. 98 and 99 of 9 & 10 Vict. c. 95. (1) Ante, p. 341, rule 16, January, 1870. See also Ex parte O'Neil, 1 L. M. & P. 737. (m) Hayes v. Keene, 21 L. J., C. P. 204; S.C., 16 Jur. 976. (n) Rule 17, January, 1870. PART III. Return of order, and payment of of the prescribed costs (o). A certificate of payment by a prisoner must be in the prescribed form (p). Return of Order and Payment of Money levied.]-The return of the execution, or what has been done under the money levied. warrant of commitment and payment of money levied under it, must be made by the high bailiff, in the same way as the return of writs of execution against the goods of a party. See ante, p. 169. Fees on execution. Execution out Fees on Execution.]—The court fees upon the order must be paid into court at the time of the issue of the order of commitment. These will be found post, p. 844. Execution out of Jurisdiction.]-Where an order of of jurisdiction. commitment issues against a person who is out of the jurisdiction, it may be sent by the high bailiff of the home court to the registrar of the court within the jurisdiction of which the person is, in the same manner as a writ of execution against goods (q). If the person is apprehended, he must be forthwith conveyed in custody of the bailiff or officer apprehending him to the prison of the court within the jurisdiction of which he was apprehended, and kept therein for the time mentioned in the order of commitment, unless sooner discharged under the provisions of the act; and all constables and other peace officers must aid and assist within their respective districts in the execution of the order (r). Transmission of money levied. Imprisonment no satisfaction. Transmission of Money levied.]-Where the warrant of commitment is sent to be executed in a foreign district, the money levied thereunder must be accounted for and transmitted in the same way as in the case of execution against the goods of a party (s). See ante, p. 170. Imprisonment no Satisfaction.]-Imprisonment does not operate as a satisfaction or extinguishment of the debt or cause of action for which judgment was obtained, nor protect the debtor from execution against his land or goods (t), nor does it protect the judgment debtor from (0) Rule 18, January, 1870. (q) Ante, p. 170. (r) 9 & 10 Vict. c. 95, s. 104, 15 & 16 Vict. c. 54, s. 5. (s) Rules 170 and 171. (t) 32 & 33 Vict. c. 62, s. 5. being summoned anew and imprisoned for a new de- CHAP. XIII. fault (u). Where, therefore, a judgment debtor has been once committed for non-payment, he may, at the expiration of the period for which he was imprisoned, be again committed, if, having had or having the means to pay, he has refused or neglected, or refuses or neglects, to pay; and upon these facts the decision of the judge of the county court is conclusive (x). Any person may, however, by payment of the amount indorsed on the order, obtain his discharge (y) in one of the modes mentioned at p. 343. In order to obtain a judgment debtor's discharge by payment, the above mode of proceeding must be strictly followed; for where a judgment debtor, having been committed for non-appearance, under 9 & 10 Vict. c. 95, s. 99, paid the debt and costs to the execution creditor, but no application was made to the court, and he was subsequently arrested by the bailiff of the court under the warrant of commitment, it was held that the arrest was legal (z). Protection under Bankruptcy Act.]—Where a debtor Protection has been adjudicated bankrupt, no creditor whose debt is under Bankprovable under the bankruptcy has any remedy against ruptcy Act. the person or property of the bankrupt, except under the bankruptcy. In the case of a debtor whose affairs are in liquidation, under sect. 125 of the Bankruptcy Act, 1869, the appointment of a trustee is equivalent to, and has the same effect as, an adjudication of bankruptcy. In the case of a composition with creditors under sect. 126 of the Bankruptcy Act, 1869, the provisions of a composition accepted by an extraordinary resolution of creditors is binding upon all creditors whose names and addresses, with the amounts of their debts, are shown in the debtor's statement. Rules of practice provide that Where the judgment debtor upon the return day of the summons satisfies the court that he has been adjudicated a bankrupt, and that the debt was provable in the bankruptcy, or that, in respect of the debt, the 125th or 126th (u) 9 & 10 Vict. c. 95, s. 103. (x) Re Boyce, 2 E. & B. 521; S. C., 22 L. J., Q. B. 393; 17 Jur. 715. (y) See form of Certificate, 76, App. (z) Davies v. Fletcher, 2 E. & B. 271. |