Scottish Court of Session Decisions

The Debtors (Scotland) Act 1880, which came into operation on 1st January 1881, provides by section 4, with the exceptions hereinafter mentioned, that no person shall after the commencement of this Act be apprehended or imprisoned on account of any civil debt. There shall be excepted from the operation of the above enactment (1) Taxes, fines, penalties due to Her Majesty, and rates and assessments lawfully imposed and to be imposed; (2) sums decerned for aliment—Provided that no person shall be imprisoned in any case excepted from the operation of this section for a longer period than twelve months.

On 21st August 1880 William Walker was incarcerated in the prison of Ayr under a decree for aliment of an illegitimate child of which he was the father. The incarcerating creditor was Anne Bryce, the mother of the child. The child was born in May 1880, and at the time of his incarceration Walker had not paid any sum under the decree which decerned him to pay aliment quarterly in advance. There were thus two quarters' aliment as well as a sum of inlying expenses due at the date of his incarceration. On 20th August 1881 a new warrant of imprisonment, following on a charge to pay aliment due on 3d November 1880, and 3d February, 3d May, and 3d August 1881, was served upon him in prison. Thereafter on 24th November 1881 he raised this process of suspension and liberation under the Debtors (Scotland) Act 1880, pleading, inter alia—“(2) The imprisonment of the complainer since 21st August 1881 being illegal in respect of the Debtors (Scotland) Act 1880, the complainer is entitled to liberation.”

The respondent lodged answers averring that the suspender had means amply sufficient to pay.

She pleaded, inter alia—“(1) The complainer's statements are irrelevant and insufficient to support the prayer of the note;” and “(3) The diligence of the respondent being formal and regular, is not liable to suspension.”

The Lord Ordinary on 2d December having heard counsel, passed the note and granted liberation, but on the motion of the respondent

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prohibited the Clerk of the Bills from issuing any certificate of liberation till Tuesday the 6th, that the respondent might reclaim if so advised. He added this opinion:—

“ Opinion.—In this case the complainer was imprisoned on 21st August 1880 for non-payment of two quarterly instalments of aliment due under a decree of the Sheriff of Ayrshire. Within a year after the commencement of the term of imprisonment a second warrant of imprisonment was lodged with the keeper of the prison for further arrears of aliment which had accrued during the period of the complainer's imprisonment, and on this warrant the complainer is at present detained in the prison of Ayr. He seeks liberation under the provisions of the Debtors Act 1880, limiting the use of personal diligence for alimentary debts to twelve months' imprisonment in each case. The natural and obvious reading of the statute is that which makes the word ‘case’ synonymous with decree, and this interpretation is supported, if support be necessary, by the antecedent part of the clause, in which the power of imprisonment is reserved in relation to ‘sums decerned for aliment.’

The decerniture or decree is here referred to as the proceeding which is to be put in execution by means of personal diligence, and I think the meaning of the proviso is that a decerniture or decree may be followed by imprisonment not exceeding twelve months.

It must be remembered that according to the theory of our law imprisonment for civil debt is awarded as a means of enforcing obedience to the decree which the debtor is charged to implement or perform. In the present case obedience to the decree means the regular payment of the instalments of aliment during the whole period to which the decree extends. There may, no doubt, be successive defaults in payment by the debtor, but there can only be one performance, namely, by complete implement of the whole obligations constituted by the decree. I am therefore of opinion that the two warrants of imprisonment issued against this complainer are truly warrants applicable to the same case within the meaning of the statute, and that the aggregate period of imprisonment under the two warrants must be limited to twelve months. Any other construction would enable the creditor by successive warrants to detain the debtor, if not possessed of independent means, for the whole period of ten years, and would defeat the plain intention of the statute. The judgment will be to pass the note and grant liberation.”

The respondent having reclaimed, the case was heard on 6th December.

The reclaimer argued—There were here two questions — (1) Whether the respondent could be held to have detained the suspender a year in prison in the sense of the recent Debtors Act, which had come into operation after a considerable part of the year's imprisonment had been suffered. On that point it was clear that the Act did not apply to this case, as the suspender had not even yet been a year in prison since the passing of the Debtors Act. It required a special section (section 5) to allow the debtors incarcerated for ordinary civil debt to be liberated at the commencement of the Act, and there was no section applicable to this case. But (2) on the general question it could not be said that by suffering one year's imprisonment a person in default of payment of an alimentary debt was free from that mode of compelling payment of sums which might become due under the decree long after the imprisonment had been suffered. The contention sustained by the Lord Ordinary came to this, that such a debtor could by suffering one year's imprisonment be freed from that mode of compelling payment for ever. Each term's payment was a new debt, and a good ground for the diligence of imprisonment. The analogy of the taxes clause was in reclaimer's favour. Taxes were payable by certain statutes, and summarily recoverable without a new action, each new tax being a new debt, and the quarterly payments of aliment were in exactly the same position. The cases on the English Vaccination Statutes, where it had been held that a mere suffering of the penalty did not give the person in breach of the Act a licence to remain in breach of it, were in point— Allen v. Worthy, 9 Q.B. 163; Knight v. Halliwell, 9 Q.B. 412.

Argued for suspender—Imprisonment for debt is for disobedience to a decree, and when the Legislature has supplied a test of the debtor's willingness to pay by ordaining that it shall be competent to inflict one year's imprisonment, the Court will not suffer that period to be extended. The Act must, in accordance with the most elementary rule for the construction of statutes, be read in its plain grammatical meaning, which was that in the case of sums decerned for aliment imprisonment might not exceed one year. Now, the decree here, as in all such cases, decerned for the whole seven years' aliment at one time, and it was extracted. Further, the Act must be construed as an amending Act in favour of its object, the imprisonment for civil debt, and also must, as an Act in favour of liberty, assuming any ambiguity, be read in favour of liberty. The argument founded on from the preceding sub-section was unsound. With each new year there was a new tax due, but here the debt was constituted all at once. The speciality in the case was of no consequence, since the debtor would, assuming the reclaimer's argument to be sound, be freed in a very few weeks, and the respondent had no interest to maintain the argument. The words “shall be imprisoned” were in suspender's favour here.