W petitioned for judicial separation from her husband on the ground of cruelty. An order was made that the respondent should pay the petitioner’s solicitor pounds 41 odd to cover costs already incurred and should pay into court pounds 40 as security for future costs alternatively give a bond. The respondent did none of these things and the petitioner applied for leave to issue a writ of attachment. Leave was granted by Butt J. The respondent appealed, relying upon section 4 of the 1869 Act. Counsel for the petitioner conceded that the order could not be supported so far as it related to the order for payment of pounds 41 odd.
Held: Subject to that, the appeal failed.
Cotton LJ said: ‘In my opinion the order for attachment was not in violation of the Debtors Act, because it was not for default in payment of a sum of money within the meaning of that section. The object of the Act was to prevent the imprisonment of persons for nonpayment of ordinary debts. No doubt the words used in the Act are very wide; but we must consider what was really meant by the payment of a sum of money. This order was not for the payment of a sum of money to the respondent; nor was it simply an order for the appellant to pay a sum of money into court; but there was an alternative, he was either to pay the money or to give a bond. It was argued that the mention of the bond was only subsidiary to the order for payment of the money, that the order was in effect simply an order to pay the money. I do not take that view. If the appellant had given the bond, he would have complied with the order . . The order was an order to give security, and as such was not within the 4th section of the Debtors Act . . ‘
Lindley LJ said: ‘The question turns upon the words of the 4th section of the Debtors Act. It is said that the appellant is within the protection of the Act, because he has made default in payment of a sum of money. But what do the words ‘payment of money’ in this section mean? In my opinion, they do not mean depositing a sum of money in court, to abide an order to be subsequently made. If the appellant had been ordered to pay the money to the receiver of the Court in discharge of an obligation to which he had been declared liable, that might be different. But that is not so here; he is to deposit the money in court, or to give security for it. That is not within the meaning of the words of the Act.’
Cotton LJ, Lindley LJ, Bowen LJ
(1888-1889) LR 14 PD 17, [1888] UKLawRpPro 54
Commonlii
Debtors Act 1869 4
England and Wales
Cited by:
Cited – Hussain v Vaswani and Others CA 18-Sep-2020
Breach of Undertaking went Beyond Debt
The tenant had obtained a stay of execution of a warrant for possession, by undertaking to discharge the arrears. He failed to pay, and the Court now considered whether such a failure was a contempt with a possible imprisonment for punishment. The . .
Cited – Prosser v Prosser ChD 2011
A consent order had been made in proceedings between two brothers which provided that the respondent should instruct the solicitors acting for him on the sale of his property that the proceeds of sale were to be remitted to a nominated bank account. . .
Cited – Graham v Graham CA 1992
. .
Lists of cited by and citing cases may be incomplete.
Insolvency, Litigation Practice
Updated: 11 December 2021; Ref: scu.654049