Harry Impey.

Debt recovery and county court procedure. A practical and easy guide for business men online

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■I DEBT RECOVERY



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UNIVERSITY

OF CALIFORNIA

LOS ANGELES



SCHOOL OF LAW
LIBRARY



DEBT RECOVERT



7



AND



COUNTY COURT PROCEDURE.



PRACTICAL AND EASY GUIDE FOR
BUSINESS MEN.



BY

HARRY IMPEY,

111

A BAILIFF OF THE LTJTOX COUNTY COURT.



LONDON :

STEVENS AND SONS, LIMITED,

119 & 120, CHANCEEY LANE,

^;r(jj |!uljlif5l)crj).
1908.



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( iii )



INTRODUCTION.



In the following pages the endeavour is
made to present accurately and concisely,
but as far as possible with the avoidance
of legal terms, the rules and regulations
applying to County Court Procedure ; also
to give useful hints to enable tradesmen
and others to easily and successfully recover
debts without legal assistance.

For the purpose of recovering undisputed
claims for goods sold and delivered, work
done, or money lent it is unnecessary to
incur the expense of instructing a solicitor,
and the County Court Rules referring to
such actions were evidently framed by the
legislature for the use and guidance of plain-
tiffs who prefer to conduct their cases in
person.

a2



IV INTRODUCTION.

Providing the creditor takes full advan-
tage of the power allowed by the County-
Court Acts now in existence, and follows
the instructions given herein, no debtor
who has the means to pay need be allowed
to evade the discharge of his liabilities.



I' V )



CONTENTS.





PAGE

Introduction iii



CHAPTEE I.
Jurisdiction of County Courts 1



CHAPTER II.

Procedure by Ordinary Summons 5



CHAPTER III.

Procedure by Default Summons 22



CHAPTER IV.

Summons under Bill of Exchange Act, 1855 .... 33



CHAPTER V.
Execution against Defendant's Goods 39



VI CONTKNTS.

CHAPTER VI.

PAGE

Garnishee Pboceedings or Attachment of Debt. . 45



CHAPTER VII.

Judgment Summons and Order of Commitment . . 50



CHAPTER VIII.

Warrant for Debtor's Arrest 60



DEBT EECOYERY

AND

COUNTY COURT PROCEDUEE.



CHAPTER I.

JUEISDICTION OF COUNTY COURTS.

The County Court is an ancient institution
founded by Alfred the Great, and until the
reign of William the Conqueror its jurisdic-
tion embraced both civil and ecclesiastical
matters. Although the ecclesiastical authority
then ceased, the civil power continued, and
in the reign of Plenry 11. Justices of Assize
were appointed to visit the different counties
yearly.

By a statute passed in 1846 County
Courts were established in their present
form throughout England and Wales with
the exception of the City of London ; they
were consolidated in 1888, and by an Act



2 DEBT RECOVERY.

of Parliament wliich came into force on
January 1st, 1905, jurisdiction was extended
to claims not exceeding 100/.

England and WalcvS is divided into districts,
and a County Court is established in each.
The City of London is a County Court form-
ing a district of itself, and is subject to the
same provisions as other Courts, except that it
has been allowed to retain certain privileges.

The metropolitan districts, including
Bloomsbury, Brompton, Clerkenwell, Lam-
beth, Marylebone, Shoreditch, Southwark,
Westminster, Whitechapel, and the City of
London, have special privileges with regard
to jurisdiction.

In that respect they are regarded as one
district, it being specially provided that a
plaintiff who resides or carries on business
within the district of any Metropolitan
County Court may proceed in that Court
against a defendant who resides or carries
on business in any other Metroj^olitan Court
without obtaining leave to issue the summons.

With this exemption the rule applying to
jurisdiction is that tlie defendant can only
be sued in the Court of the district in which



JUJilSDICTION OF COUNTY COURTS. 3

he resides or carries on business. Providing
both the phiintiff and defendant reside or
carry on business in tlie same town or district
this rule presents no inconvenience to either
part}^. It, however, frequently liappens that
a wholesale merchant who is carrying on an
extensive business has debtors in various
23arts of the country, and it would involve
him in much trouble and expense if this
regulation was strictly enforced. In order
to overcome this difficulty the rules provide
that a summons may be issued in the County
Court of the district in which the cause of
action wliolly or in part arose.

The question naturally arises as to what
the words '' cause of action " mean, and
what the facts are which can be said to be
material to the cause of action.

An order for goods is considered to be a
material part of tlie cause of action, and
with the object of making this point clear
we will assume that A., who resides or carries
on business in Manchester, wishes to sue B.,
who resides or carries on business in Birming-
ham, for goods sold and delivered. If A.
received the order for the goods in Man-

a5



4 DEBT RECOVERY.

Chester, and they were delivered to B. in
Birmingham, "a material part of the cause
of action " would arise at each place ; con-
sequently A. would be at liberty to issue his
summons either in the Manchester or Bir-
mingham County Court.

Non-payment at a place where the debtor
ought or has agreed to ])aj is also considered
a material part; so that, providing A., who
resides or carries on business at Sheffield, is
indebted to B., wdio resides or carries on
business at Nottingham, and assuming that
the money is payable at Nottingham, cause
of action would arise there, and B. would
have iurisdiction to sue in that Court.

The leave of the Court must be obtained
in all cases where the defendant does not
reside or carry on business within the dis-
trict of the Court in which the plaintiff pro-
poses to sue him. Before this can be granted,
the plaintiff, or some person on his behalf
who has knowledge of the facts of the case,
must make an affidavit setting forth the
circumstances on which the application is
grounded, and showing that there are material
facts which constitute " cause of action or
claim.".



CHAPTER 11.

PROCEDURE BY ORDINARY SUMMONS.

Proceedings may be commenced in the
County Court either by the issue of an
ordinary summons or a default summons,
and in the majority of cases the former
procedure will be found the more convenient
means of enforcing payment from the debtor.

The service will be effected by the bailiff
of the Court in which the defendant resides
or carries on business, unless the Court other-
wise specially orders, and the hearing will
take place on a day fixed by the Court, pro-
bably about a month from the issue.

The summons can be made returnable
either on the Court day for which summonses
are then in the ordinary course being issued,
or at the request of the plaintiff at any sub-
sequent Court.

As it frequently happens that the bailiff
can only effect service after considerable
difficulty, the plaintiff should endeavour to



6 DEBT RECOVERY.

issue the summons in such time before the
hearing as will allow of some latitude. An
ordinary summons, providing the claim does
not exceed 50/., is required by the rules of
the Court to be served at least ten clear
days before the hearing, and assuming that
the service is to be effected on a defendant
residing or carrying on business out of the
district in which the summons is issued, it
should be in the hands of the bailiff not less
than eighteen clear days before the Court day.
Where the defendant resides or carries on
business in the district of the Court in which
the summons is issued, sufficient time should
be allowed to admit of it being delivered
to the bailiff at least fifteen clear days before
the hearing.

In all cases where the debt or claim exceeds
50/. the summons must be served not less
than twenty clear days before the Court
day.

It should be issued at least twenty-five
clear days before the Court day if the
summons is to be served in the district, and
twenty-eight clear days providing it is to be
served out of the district.



PROCEDURE I5Y ORDINARY SUMMONS. 7

A summons may, however, be issued and
served at any time before the court day
upon the plaintiff making an affidavit show-
ing that the defendant is about to remove
out of the district of the Court, and unless
the judge otherwise orders the service would
be considered valid.

The fee for issuing an ordinary summons
is 1^. in the £ on the amount of debt or
claim (fractions of a £ being counted as a
£), w4th an additional fee of Is. if the amount
exceeds 2/. up to 20/. Where the debt or
claim exceeds 50/. a further fee of 106-. is
payable, but in no case can the fee exceed
1/. Us.

Upon payment of the fee a Plaint Note
will be issued to the plaintiff, which will
state tlie day fixed for the hearing of the
case. It must be produced whenever the
plaintiff attends the Court, or makes any
application or inquiry in connection with the
case at the Court offices.

Instructions for Issue. — The plaintiff, or
some person on liis behalf, should attend at
the Court offices and request to be given a



8 DKBT RECOVERY.

Prsecipe, or " Form of Instructions for Ordi-
nary Summons." This must be filled up, and
the following particulars will be required :

Plaintiff's names in full.
Residence or place of business with

number of house.
Trade or occupation.
Defendant's name in full.
Residence or place of business with

number of house.
Whether male or female, and if known

whether of full age or not, and if

female whether married, single or

a widow.
Trade or occupation.
Amount claimed.
What the claim is for.

Particulars of Claim. — Providing the claim
exceeds 21. at the time of the issue of the
summons, the plaintiff must file two copies
of particulars of the same with the registrar ;
an additional copy will be required for each
defendant should there be more than one,
as one copy is retained for the use of the



PROCEDURE BY ORDINARY SUMMONS. 9

Court and one is attaclied to and served
with the summons.

In making out the particulars of claim the
following heading should be used :

In the County Court of holden at

No. of Plaint
[Names in full. ~] Plaintiff.

[_Names in full.'] Defendant.

The following are the particulars of the
plaintiff's claim : —

Assuming that the claim is for goods sold
and delivered, and that a detailed statement
of account has, in the ordinary course of
business, been rendered to the defendant,
the following formula should be written at
the end of the particulars, and the amount

of the claim inserted : —

£ s. d.
To account (or balance of ac-
count) for goods sold and
delivered, full particulars of
which have been rendered
to the defendant - - - : :

Leave to issue. — In all cases where the
defendant does not reside or carry on



10 DEBT RECOVERY.

business within the district of the Court in
which the summons is issued, the plaintiff
must obtain the leave of the Court in order
to proceed, and for that purpose the plaintiff,
or some person on his behalf who has a
knowledge of the case, nmst make an affi-
davit setting forth the facts upon which the
application is grounded, as explained in
Chapter I. The oath will be administered
by the registrar or his clerk, and no fee is
payable. A copy of the affidavit must be
lodged with the registrar, with an additional
copy for each defendant if there is more than
one. As explained in Chapter I., providing
both the plaintiff and defendant reside in
Metropolitan Courts, this provision would
not apply, as for the purposes of jurisdiction
they are regarded as one district.

Infants as Plaintiffs. — All persons under
twenty-one years of age are regarded by the
law as infants, and must sue by a next friend,
who at the time of entering the summons is
required to give an midertaking to be
responsible for the costs of the proceedings.
But providing the claim does not exceed



PROCEDURE BY ORDINARY SUMMONS. 1 1

100/., and is for wages or piece-work or for
work clone as a servant, an infant may sue
in his own name as if he were of full age.

Married Women as Plaintiffs. — As provided
by the Married Women's Property Act, 1882,
a married woman may issue a summons in
her own name, and her husband need not be
joined with her as plaintiff.

Joint Defendants. — Where a plaintiff has a
claim against two or more defendants who
are jointly liable, he is permitted to sue
them jointly, or to proceed against one only
or as many of them as he chooses. Any
further proceedings that might be necessary
could only be taken against the defendant or
defendants against whom judgment has been
obtained.

Action against Partners. — The plaintiff may
sue any two or more persons Avho are co-
partners carrying on business as a firm, or
any person carrying on business in a name
or style other than his own name, and pro-
viding judgment has been obtained against



12 DEBT RECOVERY.

a firm, execution may issue against the goods
of the partnership o}ilij. (See Chapter V.,
p. 41.)

Abandonnicut of Excess. — The plaintiff is
permitted, in order to bring his chiim within
the jurisdiction of the County Court, to
abandon any excess of his claim over 100/.
The amount abandoned must be entered at
the end of the particulars which are required
to be filed at the time of the issue of the
summons. After judgment has been obtained,
no further action could be taken to recover
the amount abandoned.

Service of the Summons. — The service of an
ordinary summons, where the claim does not
exceed 50/., is in all cases, unless otherwise
specially ordered, effected by the bailiff of
the district in which the defendant resides
or carries on business. Where the amount
olaimed is over 50/. the plaintiff or some
person in his permanent and exclusive employ
may effect service, providing request is made
in the Praecipe or "Form of Instructions"
required to be filed before the issue of the
summons.



PROCKDURK HY ORDINARY SUMMONS. 13

It is not desirable for the plaintiff to
undertake the service of a summons without
there is some special reason why he should
do so; in the majority of cases the bailiff
will be able to serve the summons with
despatch and without trouble to the plaintiff.

Assuming, however, that the service has
been effected otherwise than by a bailiff, a
copy of the summons with the date, place,
and mode of service endorsed thereon, and
an affidavit of service (a form for which is
supplied by the Court), must within three
clear davs after the day of service be
delivered to the registrar of the Court.

An ordinary summons does not require
personal service on the defendant, although
in cases where the claim is large it is desir-
able that it should be effected in that
manner, even at the cost of extra time and
trouble ; it may be delivered to any person
apparently not less than sixteen years of
age, at the house or place of dwelling or
place of business of the defendant, or at any
place within the district to which he may
have removed.

Where defendants are sued as partners in



14 DEBT KECOVKRY.

the name of their firm, the summons may
be served either upon any one or more of
the partners at the principal place of the
partnership business or upon any person
having, or aj)pearing to have at the time of
service, the control or management of the
business.

Service npon a limited company must be
made at the registered office of the company
upon a person in charge thereof, the person
effecting the service having first ascertained
by seeing it written or affixed on the outside
of the premises, or by inquiry at the pre-
mises, that the registered office is situate at
such address.

Where husband and wife are both defen-
dants each must be served unless the judge
or registrar otherwise orders, but one can
accept service of an ordinary summons onl/i on
behalf of the otlier. In such cases it is
desirable that both defendants should be
served personally.

Providing that the defendant is an infant,
i.e., under twenty-one years of age, service
may be made on his father, guardian, or (if



PROCEDURE BY ORDINARY SUMMONS. 15

none) on the person with wliom he resides,
unless the Court shall otherwise order.

If the summons has been delivered to some
person at the place mentioned as the defen-
dant's residence or 2)lace of business, and by
the bailiff's endorsement of the statement
made by that person it appears doubtful
whether the Court will be satisfied that the
service has come to the defendant's know-
ledge before the day of hearing, the high
bailiff will send notice to the plaintiff to that
effect. The plaintiff in that event should
make all inquiry possible, so that he may
if jjossible be prepared if the defendant does
not appear at the hearing to satisfy tlie Court
that the summons has come to his knowledge
before the Court day. Providing the plain-
tiff is able to do this, the Court will decide
that the service is valid and proceed to hear
the case. If the Court is not satisfied that
the summons came to the defendant's know-
ledge before the Court day, an order will
probably be made for a successive summons
to issue without payment of a further fee.

Where a summons has not been served the
Court has power to order the issue of a sue-



16 DEBT RECOVERY.

cessive summons, providing the non-service
has not been caused by the fact of the plain-
tiff having mis-stated the name of the defen-
dant, or having given a wrong or insufficient
address, or of the defendant having before
the issue of the summons removed from the
address given.

A successive summons may, by leave of
the Court, be served by the plaintiff or some
person in his permanent and personal employ.
If service is effected in this manner, a copy
of the summons, with the date, place and
mode of service endorsed thereon, and an
affidavit of service according to the form
supplied by the Court, must, within three
days after the service, or within such extended
time as may be allowed, be lodged with the
registrar.

If the plaintiff ascertains that the defen-
dant has removed from the address given on
the summons to some other address within
the district, he should at once inform the
Court of the fact ; and if the information m
received in sufficient time before the hear-
ing, the bailiff has power to eft'ect service at
the defendant's new address.



PROCEDURE BY ORDINARY SUMMONS. 17

Providing the summoiLs is not served, the
high bailiff will give the plaintiff notice of
the fact and state the reason for the non-
service. Notice of service of an ordinary
summons is not given, and where notice of
non-service is not received the plaintiff must
assume that service has been effected.

Where a defendant keeps his house or
2)lace of business closed, or in any way
attempts to avoid service of the summons,
the plaintiff' may apply to the Court by an
affidavit for an order for substituted service
as explained in Chapter III.

Judgment hy Confession. — The defendant
having been served with the summons may,
if so disposed, any time before the hearing,
in the presence of the registrar of any County
Court, any registrar's clerk, or a solicitor^
sign a statement confessing and admitting
the claim for which the summons was issued
or any part of it, and may add to his con-
fession an offer to pay the amount by instal-
ments. Notice of the confession is sent to the
plaintiff by post or otherwise, and no proof of
the claim is then required. If the plaintiff



18 DEBT RECOVERY.

agrees to accept payment in the manner
proposed by the defendant it will not be
necessary for him to attend on the day of
hearing, and upon payment of a fee of Is. in
the £ judgment will be entered against the
defendant. Assuming that the plaintiff does
not consent to accept the offer made by the
defendant, he must attend the sitting of the
Court in order to obtain judgment.

Payment into Court Ijefore Hearing. — If the
defendant pays into Court the full amount of
the claim or any part of the same the registrar
will give notice to the j)laintiff of the fact.
The amount paid may be withdrawn at the
Court office on the production of the Plaint
Note by the plaintiff in person or some person
acting on his behalf. Providing part of the
claim is j^aid and the plaintiff elects to accept
the same in full satisfaction, he should at once
send notice of his intention to the registrar's
office and to the defendant at his place of
abode or business ; the action will then be
discontinued and there will be no liability
for further costs.

The Hearing. — Assuming, however, that



PKOCEDUKE BY OKDINAUY SUMMONS. 19

the defendant has not paid into Court the
whole or any part of the claim, and the
circumstances make it necessary to proceed
with the case, the plaintiff, or some person
acting on his behalf who has a knowledge
of the facts of the case, should appear in
Court on the day fixed for the hearing. Un-
defended actions are usually disposed of by
the registrar as the list is being called over,
disputed cases being postponed, and after-
wards heard by the judge.

Before the case is heard the plaintiff must
pay the hearing fee of 25. in the £ on the
amount of claim up to 201. (fractions of a
£ being taken as a £), reduced to 1-5. in the
£ providing the defendant either by appear-
ance, confession, or a letter directed to the
Court, admits the claim. When the claim
exceeds 201. the fee is payable on that sum
only.

If the defendant does not appear in person
or is not represented, and has made no
admission of the claim to the Court, evidence
that will prove the claim will be necessary.
Assuming that the debt is for goods sold
and delivered, the plaintiff or an employ^



20 DEBT RECOVERY.

should prove the receipt of the order for the
goods and the delivery of the same. Judg-
ment will then be entered for the plaintiff,
payable by instalments, or otherwise as the
Court may order.

Providing the amount of the claim exceeds
20/. the plaintiff is entitled to judgment
payable within fourteen days from the order
being made, but if the claim does not exceed
20/. the Court may, although not necessarily,
order the defendant to pay by instalments.

In the latter case the registrar will pro-
bably take the means and position of the
defendant into consideration when making
the order, and tlie plaintiff should be pre-
pared to give some evidence as to his trade
or occupation, his wages or salary, and the
amount of his rent.

The Court has power to accept as an
admission of the claim, or any part thereof,
a letter addressed to the Court purporting
to be written by or on behalf of the de-
fendant, if satisfied that such letter was in
fact written by or by the authority of the
defendant. Providing the defendant has
admitted the claim in this manner no proof



PROCEDURE BY ORDINARY SUMMONS. 21

will be required, and judgment will be
entered for the plaintiff upon payment of a
fee of Is. in £, being half the usual hearing
fee.

Where the defendant appears personally,
or by some person representing him, and
the claim is admitted, judgment will be
entered for the plaintiff without further
proof, and upon payment of half the hearing
fee.

Assuming that the plaintiff has obtained
judgment, notice will be sent to the defendant
by tlie bailiff of the Court, informing bim of
the date and mode of payment. Should
default be made in payment, whether of the
whole amount of the debt and costs or of any
instalments, the plaintiff may proceed to
enforce payment by any of the means here-
after explained.



«2



22 DEBT RECOVERY.



CHAPTER III.

PROCEDURE BY DEFAULT SUMMONS.

A DEFAULT SUMMONS may be issued for any
debt or liquidated claim not exceeding-
100/. upon the filing of an affidavit verifying-
the debt. The procedure is in many respects
similar to that of a writ issued in the High
Court of Justice ; the summons is served on
the defendant personally, and unless within
eight days after such service he gives notice
to the Court of his intention to defend the
action, the plaintiff may enter judgment by
default.

Where the proposed plaintijff is assignee of
the debt or claim, or where the defendant is
a domestic or menial servant, a labourer, a
servant in husbandry, a journeyman, an
artificer, a handicraftsman, a miner, or any
person engaged in manual labour, a default
summons ma}' not be issued, and the action
must be commenced by means of an ordinary
summons.



PROCEDURE BY DEFAULT SUMMONS. 23


1 3