ambiguity in the framing of the statute itself, and to this rule the Debtors Act forms no exception. One common-sense principle on which parts of the Act proceed is, that no man should be imprisoned for nonpayment of what he cannot pay. But this principle is not consistently applied, and a man's inability to pay the rates as already noticed affords no protection against a committal for non-payment. Such committals in fact take place every day. And the Act seems to have contained no provision which rendered inability to pay a defence against an application to the justices of the peace to commit a man for failing to comply with a maintenance order. A remedy for this latter evil was indeed provided ten years later by the Summary Jurisdiction Act of 1879 (sect. 35, sub-sect. 2), but the magistrates apparently did not always insist on proof of means, and at the end of another twenty years a test case was tried in the High Court which established the necessity of this requirement. It is believed, however, that the justices of the peace still often make committal orders in such cases without proof of means. It is remarkable that, so far, the Committee on Imprisonment for Debt does not appear to have dealt with this class of committals which are pretty numerous. Turning to the County Courts and the judgment summons process, the principle is acknowledged, but with the addition that if the debtor has had the means to pay the debt since the judgment was entered up, or has had means to pay the overdue instalments since the instalment order was made, he is liable to imprisonment though he may no longer have the means to pay at the time that the committal order is applied for. The object of this provision seems to have been to prevent the debtor from getting rid of his property by sham or fraudulent assignments and then declaring that he has no means of paying 1 In re Gamble (L. R. [1899], 1 Q. B., p. 305). the debt. But as a judgment may be entered up against a man without his knowledge (personal service of the plaint not being required), the date at which notice of the judgment was personally served on the debtor ought to be substituted for the date of entering up the judgment, while it is still more evident that the date when the instalment became due ought to be substituted for the date of the instalment order. The Act seems to have been framed on the assumption that the debtor had not paid any instalment, and may obviously work injustice if he breaks down after paying two or three instalments. This last evil might perhaps have been avoided by a provision that no instalment order should be made (on a creditor's application) without proof of ability to pay the instalments, i.e., proof that he would be able to pay them if his present earnings (or income) remained unaltered. The intention of instalment orders was clearly to provide for the case of debtors who could not pay the debt at once (for if they could do so, why not make them pay it ?), but would be able to pay it by instalments if given time for the purpose. To justify the making of such an order there ought to be some evidence of present inability and future ability; but the statute omitted to state this in terms, and in the case Stonor v. Fowle, already alluded to, it was held that an instalment order might be made without any evidence that the debtor was likely to have the means of paying the future instalments. Matters are made worse in practice by leaving the making of instalment orders to the registrar instead of the judge. In fixing a limit of six weeks for imprisonments under the judgment summons process, the framers of the statute probably intended that no debtor should be detained in prison for more than six weeks in respect of the same debt. But by enabling the judge (or even the registrar) to make instalment orders and rendering the debtor liable to imprisonment for non-payment of each instalment, they have almost entirely deprived him of the benefit of this limitation. The Act contains no limit as to the number of instalments or as to the smallness of each instalment. Orders have been made for instalments of one shilling, and in a recent case mentioned in the newspapers a debtor was actually sent to prison for non-payment of two shillings -which, in that instance, it seemed clear that he was quite unable to pay. And, of course, the smaller the instalment is, the easier it is to prove past or present means of paying it. It is clear that a limit ought to be introduced, if not as to smallness of the instalments or the number of them, at least as to the amount of overdue instalments for which a committal order could be made. Supposing that the original debt were two shillings, few judges, I think, would grant a committal order for non-payment of it. Why should it be otherwise with an instalment which may involve an imprisonment of equal duration? The procedure, though it may involve imprisonment (under penal conditions since the rules of 1899), is a civil one, and the debtor has not the benefit of the rules of criminal evidence which he would have if he had stolen the money which he has borrowed. There is no provision for giving him the benefit of any reasonable doubt that exists as to his means, nor is he allowed the option of giving his evidence or refusing to give it without prejudice to his cause. But evidence seems to be often admitted at the hearing of a judgment summons which would have been excluded at an ordinary civil trial. This seems to have arisen from the fact that the statute only requires the debtor's means to pay the debt to be proved "to the satisfaction of the Court," without any indication of what kind of evidence the Court ought to regard as satisfactory. A debtor's means to pay a debt is a subject on which it is usually difficult to obtain. satisfactory information, and the great difference in practice which exists arises chiefly from whether the judge construes Although the Rules are not a part of the Act, they may be here referred to as sources of erroneous decisions. The statute, after providing that "proof of the means of the person making default may be given in such manner as the Court thinks just," adds "and for the purposes of such proof the debtor and any witnesses may be summoned and examined on oath according to prescribed rules." This gives the creditor leave to summon the debtor as a witness to prove means to pay if he so desires, but the intention seems to have been only to require the debtor's attendance when the creditor sought to examine him. The Form of Judgment Summons, however, requires his attendance in all cases, in order to be examined as to his means to pay; and instances have occurred in which he attended pursuant to this summons, waited till the plaintiff's witnesses had been examined, expecting to be examined as stated in the summons, and then heard a committal order pronounced without being asked a single question. He was not aware of the necessity of volunteering his evidence if he wished to give it on his own behalf. But there is more than this in the Form of the Judgment Summons. Instead of informing the debtor that an application will be made to commit him for non-payment of the debt, he is called upon to show cause why he should not be committed! The Act clearly throws the onus of proving means to pay on the creditor, but here the debtor (or his wife, who usually represents him) is practically told that he will be sent to prison unless he shows cause to the contrary, and is thus set on a totally erroneous track as regards his defence. One grand defect of the Act is, that it assumes throughout that the debtor has but one creditor, and that if he had the means of paying that creditor and did not pay him he ought to be committed to prison. Yet the judge may, when the application to commit is made to him, be aware that there are other unsatisfied judgments and other instalment orders running against the debtor in his own Court, and that payment in full of one creditor will very probably prove detrimental to others. It is plain that if the examination of the debtor on a judgment summons is to become a reality, it should embrace his liabilities as well as his assets, and that the judge should take both into consideration in making his order. A partial remedy for this evil has been supplied by the Bankruptcy Amendment Act of 1890 (which does not extend to Ireland), but the small number of orders made under it sufficiently proves its inadequacy. Why should not a man whose assets are small have the same right of saving himself from imprisonment by giving them up for the benefit of his creditors as if his assets were larger? and why impose prohibitive fees on this proceeding? His assets may be quite as large compared with his liabilities as those of the greater part of the |