Our Archaic Forms of Execution

AuthorR. W. Turner
DOIhttp://doi.org/10.1111/j.1468-2230.1940.tb00772.x
Publication Date01 Jan 1941
210
MODERN
LAW
REVIEW
Jan.,
1941
OUR ARCHAIC
FORMS
OF EXECUTION
In a paper prepared for reading at the Provincial Meeting of the Law
Society
at
Worthing in September last, entitled “The Enforcement of
High Court Judgments,”
Mr.
George
E.
Hughes
has
made some valuable
criticisms and suggestions with regard to the existing system. He deals
mainly
with
the moneyed debtor who has lost
a
High Court action involving
a considerable sum of money. He points out that there is
no
reason why
such a defendant should not take the precaution of placing his assets in a
liquid and portable form and in times of peace leave by the night sleeper
for the Continent. Some weeks or months may elapse before
costs
are
taxed, and in the meantime, even if the defendant has not departed abroad,
he can successfully hide away such assets
as
he has.
A
judgment summons
rarely produces any useful information.
a
fi.
fa.
duly returns with
nulla
bona,
the flat and furniture belonging
to
the wife or
a
third party, while
procedure by elegit has been the subject of representation by the Law
Society
to
the Lord Chancellor in
1935
on the ground of its cumbersome
nature, but without result.
The remedy suggested by Mr. Hughes is that upon judgment being
given against him the defendant’s passport should
be
automatically with-
drawn and the judgment should be registered, whereupon a department in
the nature of an amalgamation of the offices of Sheriff and Official Receiver
should seize the defendant’s bank
book,
securities and papers and full
disclosure of the debtor’s position should be officially enforced.
It
would
seem sufficient if the Court had power upon application on or at
any
time
after judgment to suspend the debtor’s passport, rather than that such
suspension should be automatic. The dsculty presented by taxation of
costs
could be avoided by allowing a separate execution for costs.
It
would
also
appear that any departmental action such
as
is
suggested should only
be
available
as
a last resort upon the defendant failing to attend or appearing
unsatisfactory upon a judgment summons. In these days
of
bureaucratic
activity the liberty of the individual must
as
far
as
possible be preserved.
The law as to enforcement of judgment debts is, however, in urgent
need of reform. Most persons will agree with Mr. Hughes that the sheriff
and all
his
works are a useless anachronism. The fact that the sheriff
cannot sell the
goods
of
a
third party, including those of the debtor’s wife,
or those on hire purchase
or
under a bill of sale, makes the issue of a
3.
fa.
a leap in the dark which often rebounds upon the creditor in the shape of
costs
of an abortive execution, which cannot in any event
be
recovered
from the debtor. We no longer need a mode
of
execution with a procedure
much
as
it
was in the thirteenth century. The man in possession should
have disappeared with the debtors’ prison. Whether or not the practice
of walking possession will lessen
as
a result of the case of
Day
v.
Dauies,
“9381
2
K.B.
74l;
where the Court of Appeal held that, as regards dis-
tress, a bailiff is not in such cases entitled to possession fees, remains to be
seen.
It
is still in the interests of the sheriff‘s officer to produce an agree-
ment between debtor and creditor for him to remain in possession as long
as
possible. Because
of
this practice it has been held
that
possession fees
for twenty-one days only shall
be
chargeable against the goods in case of
bankruptcy of the debtor within three months.’ If possession is held for
Also
107
L.J.,
K.B.
696; 158
L.T.
306;
82
S.J.,
256; 54
T.L.R.
488,
Rs
English
and
Hayling,
Ex
parts
Muway
&
Co..
[1903]
I
K.B.
680.
[1938]
I
A.E.R.
686.

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