Debt of record. Superior Courts of record. CHAPTER III. OF DEBTS. DEBTS, by the common law, are divided into different classes, which formerly conferred on the creditor different degrees of security for re-payment. But these differences have been greatly modified, though not entirely removed by modern statutes, as we shall presently see. The class which conferred the highest privileges is that of debts of record, which class will accordingly first claim our attention. A debt of record is a debt due by the evidence of a Court of record (a). Every Court, by having power given to it to fine and imprison, is thereby made a Court of record (b). Such Courts were formerly either supreme, superior or inferior. The supreme Court was the Parliament. The superior Courts of record were the House of Lords, the Court of Chancery, and the Courts of Queen's Bench, Common Pleas and Exchequer, which were the more principal Courts. The Courts of the Counties Palatine of Lancaster and Durham were also superior Courts of record (c). The London Court of Bankruptcy was also a principal Court of record (d). The Court of Probate was also a Court of record (e); and so were the Court for Divorce and Matrimonial Causes (f) and the High Court of Admiralty (g). But, in the year 1875 (h), the Courts of Chancery, (a) 2 Black. Comm. 465; see (b) Bac. Abr. tit. Courts (D) 2. (d) Stat. 32 & 33 Vict. c. 71, (e) Stat. 20 & 21 Vict. c. 77, s. 23. (g) Stat. 24 Vict. c. 10, s. 14. of Justice. Queen's Bench, Common Pleas and Exchequer, and the Courts of Probate, Divorce and Admiralty, were all merged in one Court, called Her Majesty's Supreme Court of Judicature; and the Supreme Court consists of two permanent divisions called Her Majesty's High Court of Justice, and Her Majesty's Court of Appeal (i). The High Court of Justice is a superior Court of High Court record (k); and it has had transferred to it the original jurisdiction of all the above-mentioned Courts, and also of the Court of Common Pleas at Lancaster, and the Court of Pleas at Durham (1). The London Court London Court of Bankruptcy was united and consolidated with the ruptcy. Supreme Court of Judicature, and its jurisdiction transferred to the High Court of Justice by the Bankruptcy Act, 1883 (m). The Court of Appeal is also a superior Court of Court of record (n). The appellate jurisdiction of the Appeal. House of Lords is now governed by the Appellate Jurisdiction Act, 1876 (o). The inferior Courts of record Inferior may be said, generally, to consist of the County Courts, record. and of certain local Courts (p). of Bank Courts of debts. Debts of record do not, however, confer the same Crown advantages on all creditors equally, for there is one creditor whose claims are paramount to all others, namely, the crown. In order to enjoy this priority, the crown debt was formerly required to be a debt of record, or a debt by specialty, that is, secured by deed (q); though if the debt were by simple contract without such security, it would have had preference over the other simple contract creditors of the debtor, and, as some say, even over other creditors Judgment debt. A judgment debt carries interest. by specialty (r). But the distinction, which formerly existed between specialty and simple contract debts, was practically abolished as from the 1st of January, 1870, except in the case of the limitation of actions (s). It seems, therefore, that since that date a simple contract debt to the crown would prevail over a specialty debt due to a private person. The priority of crown debts in the administration of estates in bankruptcy was (with certain specified exceptions) in effect abolished by the Bankruptcy Act, 1883 (t), but in other cases it still remains (u). The lien of the crown on the lands of its debtors by record or specialty, and also on the lands of accountants to the crown, is mentioned in the author's Treatise on the Principles of the Law of Real Property (x). The privilege of the crown to enforce payment of its debt by prerogative process against the body, lands and goods of its debtor is also referred to in the same work (x), and has been mentioned in the present volume (y). Of all debts which one subject may owe to another, that which formerly conferred the most important remedy is a judgment debt, or a debt which is due by the judgment of a Court of record. As such a debt is due by the evidence of a Court of record, it is of course a debt of record. Every judgment debt carries interest at the rate of 41. per cent. per annum from the time (r) Bac. Abr. tit. Executors (L) 2. (s) See stat. 32 & 33 Vict. c. 46. (t) Stat. 46 & 47 Vict. c. 52, s. 150; see also sects. 30, 40, 125 (sub-ss. 5, 6); and the Chapter on Bankruptcy below. (u) Re Oriental Bank Corpora tion, Ex parte The Crown, 28 Ch. D. 643 (Crown debt entitled to priority in the winding-up of joint-stock companies); Re West London Commercial Bank, 38 Ch. D. 364; Att.-Gen. v. Leonard, ib. 622; Re Lord Churchill, 39 Ch. (x) Page 260, 17th ed. debts entitled to preference tration; of entering up the judgment until the same shall be satisfied, and such interest may be levied under a writ of execution on such judgment (2). On the death of Judgment the debtor, his judgment debts are required to be paid in full by his executors or administrators out of his in adminispersonal estate before any of his debts on bond or by simple contract (a); but, by a statute of the year 1860, but must be in order to secure this preference, the judgment must registered. be registered or re-registered within five years before the death of the testator or intestate, in the same manner as was required in order to affect lands in the hands of purchasers or mortgagees (b). The decree of a Court of equity was equivalent to the judgment of a Court of law (c). And the privilege of priority of payment extends to the judgments of every Court of record, whether superior or inferior; but the judgment of a foreign Court is entitled to no precedence over a simple contract debt (d). Under the present Bank- Preference of judgment ruptcy Act, however (e), the estate of a deceased debtor, debts avoided which is insufficient to pay all his debts in full, may, by adminis at the instance of a creditor, or by order of any Court bankruptcy. in which the estate is being administered, be administered in bankruptcy and distributed according to the law of bankruptcy (ƒ). In such a case, no priority (z) Stat. 1 & 2 Vict. c. 110, 8. 17; Taylor v. Roe, 1894, 1 Ch. 413. See Rules of the Supreme Court, 1883, Ord. XLII. r. 16, and Appendix H. No. 1. (a) Wentworth's Executors, 265 et seq. 14th ed.; Williams on Executors, pt. iii. bk. 2, c. 2, s. 2; Berrington v. Evans, 3 Y. & Col. 384. (b) Stat. 23 & 24 Vict. c. 38, ss. 3. 4, not retrospective; Evans v. Williams, 2 Dr. & Sm. 324. See Re Rigby, 12 W. R. 32; Jennings v. Rigby, 33 Beav. 198; Van Gheluive v. Nerinckx, 21 Ch. D. 189; Williams, R. P. 246, 247, 17th ed. (r) Shaftov. Powe, 3 Lev. 355, (d) Duplex v. De Proven, 2 Vern. 540. See also Smith v. Nicolls, 5 Bing. N. C. 208. As to Scotch and Irish judgments see ante, p. 93, n. (m). (e) Stat. 46 & 47 Vict. c. 52, s. 125, amended by 53 & 54 Vict. c. 71, s. 21; see Re Williams, 36 Ch. D. 573; Re Baker, 44 Ch. D. 262. (f) By sect. 10 of the Judicature Act of 1875 (stat. 39 & 39 Vict. c. 77), in the administration by the Court of the assets of any person who died on or after the 1st November, 1875, and whose estate may prove to be insufficient for the payment in full of his debts and liabilities, tration in Remedies of judgment creditors. will be given to creditors who have obtained judgment against the deceased debtor. For in bankruptcy a judgment debt has no preference over any other debt; but all debts are paid rateably, with some few exceptions (g). The remedies of the creditor by judgment of any of the superior Courts, against the real estate of his debtor, are mentioned in the author's Treatise on the Principles of the Law of Real Property (h). The remedies against the choses in possession of the debtor have been referred to in a previous part of the present work (i). The remedies in respect of the choses in action of the debtor Imprisonment will be hereafter mentioned. In addition to these by writ of remedies, such a judgment creditor might formerly capias ad satisfacien- have imprisoned the person of his debtor by means of dum. the writ of capias ad satisfaciendum (k); but should he have done so, he would have relinquished all right and title to the benefit of any charge or security which he might have obtained by virtue of his judgment (1). But the Debtors Act, 1869, which came into opera The Debtors the same rules shall prevail and (g) Stat. 46 & 47 Vict. c. 52, s. 40, amended by 51 & 52 Vict. c. 62. (h) Pp. 243 et seq., 17th ed. (i) Ante, p. 96. (4) Bac. Abr. tit. Execution (C) 3. (2) Bac. Abr. tit. Execution (D); stat. 1 & 2 Vict. c. 110, s. 16. If, however, the debt should not have exceeded 201., the debtor could not have been imprisoned without a previous summons and examination before a commissioner of bankruptcy or a judge of a county court, who would have ordered the commitment of the debtor only in case of fraud or other ill behaviour; and the imprisonment would not then have operated as any satisfaction of the debt. See stats. 7 & 8 Vict. c. 96, s. 57; 8 & 9 Vict. c. 127; 9 & 10 Vict. c. 95, ss. 99, 103. |