United States. Dept. of Commerce and Labor United States. Bureau of Foreign Commerce.

Consular reports, Issues 224-227 online

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Online LibraryUnited States. Dept. of Commerce and Labor United States. Bureau of Foreign CommerceConsular reports, Issues 224-227 → online text (page 21 of 92)
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do is to bar the right. Hence, unless the statute of limitations is
pleaded as a defense, the verdict may be given for the creditor.

A judgment recovered in a foreign country is powerless to in any
way keep alive a debt in Great Britain and Ireland, after a lapse of.
six years from the date when it was first incurred. A judgment
recovered in a foreign country is considered in Great Britain and
Ireland only evidence of a debt, and the debt must be sued upon in
the ordinary way.

The county courts have jurisdiction in actions of contract where
the debt does not exceed ^^50 ($243.33), and the proceedings must be
instituted in the court of the county in which the defendant or debtor

If the creditor succeeds in the county court, the defendant has to
bear the following costs, in addition to witnesses' expenses, etc. :

Amount of decree.

Not over £% ($9.73)

Not over /,$ ($24.33)

Not over ^C'o ($48.67)....
Not over ;Cao (I97.33)-.-.
Not over £^0 ($194.66)..
Not over £y> ($243.33)..

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Proceedings can l^e instituted in the superior courts for recovery
of debts when the amount exceeds j[^2o ($97. 33), and such proceed-
ings are usually taken. They must be instituted in the superior
courts whpn the amount is over ^^50 ($243.33).

The proceedings commence by an action, to which the defendant
enters an appearance. The creditor than files his statement of claim,
to which the defendant files his defense; subsequently the case is
listed and tried either before a judge and jury or a judge alone.
Either party can claim a jury to decide all questions of fact.

The expenses of the action, whenever the verdict is secured, are
paid by the defendant or party against whom the verdict was ob-
tained. There is no recognized or fixed sum for costs and expenses, as
the solicitors and counsel charge according to a fixed scale of charges
for each step taken and for all other professional services rendered.
The principal items in the expenses are the fines to counsel. The
costs may vary in amount from ^^35 ($170.33) up. They are not
affected in any way by the amount involved in the action.

Foreign creditors are at a disadvantage in recovering debts, owing
to the fact that their attendance and the attendance of their witnesses
is necessary to prove the debt, unless the evidence can be taken on
commission. In this case, the expenses are higher.


The following summary of the German laws relating to the col-
lection of debts by aliens was prepared by Consular Agent Harris,
of Eibenstock, in compliance with a request by the director of the
Philadelphia Museums, to whom copy of the report has been sent.

In Germany, all small suits which amount to $75 or less go be-
fore the Amtsgericht (ordinary court of justice). A lawyer is unnec-
essary. (Paragraph 23, Civil prozess ordnung fiir das deutsche
Reich.) This court is presided over, as a rule, by a single judge,
who deals with all sorts of petty suits. All amounts above $75 must
go before the Landgericht (provincial court of justice). A lawyer is
obligatory. This court is composed of several judges with a presi-
dent. The plaintiff must deposit beforehand a sum sufficient to
cover all the costs, in case the suit turns against him. Not only can
the court demand this deposit, but the opponent as well.

The question now arises. What steps should an American take who
is trying to collect an outstanding debt? If he has no acquaintances
in the town or city where the debt exists, he should address himself
directly to the Amtsrichter for information, and in due time, I am

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1 66


satisfied, a reply will be received. If the amount is less than $75,
the Amtsrichter will take charge of the matter and in time adjust it
himself. If the amount is more than $75, it will be placed in charge
of a Rechtsanwalt (attorney), who will take the case before the

Definite laws governing attorneys' fees were passed July 7, 1879,
and put in force October i of the same year. The sftme were intro-
duced into Helgoland January 4, 1891. Fees are charged in pro-
portion to the actual value of the case in hand. The following
table (quoted from Gebilhrenordnung fiir Rechtsanwalte) will give
an idea of these charges. It must be borne in mind that these fees
do not cover court charges (which, by the way, are not high) and
other incidental expenses. These figures represent only the fee for


For sums of $5 and less.

Is to $15






$r55to|2i5 •.




1. 00




$380 to $500



|8oo to $1,000...
$1,000 to $1,285
$1,285 to $i»6oo
$1,600 to $1,850
$1,850 to $2,380



For all amounts between $2,380 and $11,900, a fee of $1 will be
charged for every additional $476; for amounts between $11,900 and
$23,800, a fee of 75 cents for every additional $476; and for all
amounts above $23,800, a fee of 50 cents for every $476.

If an attorney has been put to any expense, this, of course, must
be refunded in addition to the regular fees. If an attorney has to
do any traveling, $5 per day must be allowed him extra for this

There are no special drawbacks, as is usual in such matters.
There is more or less procrastination; but, on the whole, I am of
the opinion that an American going to law will find that his interests
will be guarded as impartially as those of a native, and that the
decision will be in harmony with justice and German law.

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In response to a request from the Philadelphia Commercial Mu-
seum, Consul General Lincoln, of Antwerp, under date of October
25, has forwarded the following:*

Actions for the recovery of a debt of a mercantile nature can be
brought before the tribunal of commerce. The decision here ren-
dered can be appealed from in all cases where the amount of the
judgment exceeds 2,500 francs ($483). In the case of actions other
than those brought upon bills of exchange or acceptances, the plain-
tiff must summon his opponent before the court by the sheriff. The
action is heard in its turn according to its place on the calendar,
except when unusual necessity for an early hearing is alleged, in
which case its hearing can be advanced. Unless the action concerns
a debt acknowledged by the debtor, the burden of proof is thrown
upon the plaintiff.*

The judgment rendered must be served in the form of a writ on
the defendant, but the same is not put immediately into execution,
a certain delay being granted. When the defendant does not ap-
pear, judgment can be rendered by default, which fact must appear
upon the record; and the defendant has the right in the case of
judgment so obtained to appear and open the same up to the time
of the execution.

Every judgment which contains any conditions other than pay-
ment of damages and interest is subjecif to registration fees.

The law relating to bills of exchange, etc., in Belgium is found
in the statutes of the 20th of May, 1872, while the code of civil pro-
cedure lays down the methods pertaining to all other debts. Be-
tween tradesmen and for commercial debts, the creditor has the
right, provided no agreement to the contrary exists, to draw bills of
exchange on his debtor for any sum which does not exceed the
amount of the debt in question, and the drawee is compelled, accord-
ing to article 8 of the law in question, to accept the same. The re-
fusal to accept is established by an act of protest (article 9). On
the notification of the protest for nonacceptance, the indorsers,
drawer, and guarantor are compelled to furnish security for the pay-
ment of the bill when due (article 10).

Within a certain limit of time, the length of which depends upon
the place where the bill was drawn, the bearer must exact its pay-
ment, its acceptance, or acknowledgment. The period of time is
calculated from the date of the bill, otherwise the drawer and in-

*Coi»y lias been j>cm lu the museum.

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dorsers are released. The bearer of the bill of exchange must exact
its payment on the day it falls due (article 52).

The refusal to pay must be established by protest not later than
the second day after the bill falls due. A protest for nonacceptance
or nonpayment is made by the sheriff according to the terms of the
law of July 10, 1877, or, in places where no sheriff resides, by other
officers designated by the Government.

The protest is registered and inscribed in a book drawn up ac-
cording to article 443 of the commercial C9de. An abstract of the
act of protest is delivered to the debtor.

The bearer of a bill of exchange protested for lack of payment
can make u^e of his right to bring action against the drawer or either
of the indorsers individually (section 5^), or against the indorsers
and drawer collectively. If the bearer brings action against the last
indorser al^one, he must, except in the case of long distance between
the residence of the person named and the place of payment of the
bill, summon him to appear within fifteen days* time following
the date of protest (section 56). Action against the indorser in Bel-
gium (section 57), where the bill is made payable without the King-
dom, must be brought within one to eight months, according to the
place where the bill is payable. If the bearer makes use of his right
to bring an action against the indorsers and the drawer collectively,
he must exercise this right within the time fixed by articles 56 and 57.

After the expiration of the time within which action should be
brought, the bearer of the bill loses all right of action, as well against
the indorsers under act of protest for nonpayment as against the
guarantor. The same is true of actions between late and prior in-
dorsers; the same rule applies also to the bearer, in case it can be
shown that at the time of the maturity of the bill the money was on
hand to take up the same. The bearer in this case can only have
recourse against the drawee.

All right of recovery on a bill of exchange is lost after a lapse of
five years, the time beginning to run two days after the date of falling
due or with the date of the last suit brought (section 82). The pro-
visions of law above cited are applicable to acceptances as well as
to sight drafts.

The tribunal of commerce is competent to adjudge all matters
concerning bills, checks, notes, etc.

To attach the debtor's property, a writ of execution is required.
Action must be brought before a justice of the peace or the civil
court — before the first named in cases where the sum involved is less
than 300 francs ($5790); before the second if a greater sum is in-
volved. In the first case, an appeal from the sentence can be made
if more than 100 francs ($19.30) is in question; in the second case, if

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over 2,500 francs ($482) is involved. Every decision in the last re-
sort can be appealed to the court of cassation, which renders judg-
ment only on the points of the law involved ; never on the facts.

There is no special procedure for the recovery of civil debts.

In the case of action brought by a foreigner before the civil tri-
bunal, the defendant has the right to insist upon his furnishing a
bond, but not in the case of actions in the tribunal of commerce.

No fixed tariff of charges exists for the collection of debts.


The following report was prepared for the Philadelphia Museums
(to which copy has b^en sent) by Consul-General Stowe, of Cape

The Roman Dutch law, as it was in Holland at the time of the
capitulation of this colony to England in 1806, is in force here, sub
ject to subsjequent changes by act of Parliament, or to modifications
introduced by local customs. Comparatively few changes in the
general principles of the law affecting judicial practice have been
made, and the law of Holland on this subject still serves as a guide,
not only in this colony, but also in the neighboring colonies and re-
publics; indeed, throughout South Africa.

The procedure to be followed by aliens in the recovery of debts
in this colony is practically the same as has to be followed by domi-
ciled citizens, with this exception : A plaintiff domiciled in the colony
can not be compelled to give security for the costs of the action,
be he ever so poor; nor can a defendant be called upon to give
security. But a nonresident plaintiff having no landed property
in the colony, unmortgaged or not of sufficient value over and above
the mortgage, must give security for costs; and a nonresident de-
fendant who makes a claim in reconvention must give security to
answer the judgment and costs.

In order to enable solicitors here to recover debts on behalf of
alien clients, the following is necessary:

(i) In unliquidated cases, clients must send a properly legalized
power of attorney authorizing some solicitor here to institute pro-
ceedings on their behalf according to law, and generally to do what-
ever may be necessary in the premises; also, a correct specified
account showing each item due. In such cases, it might be neces-
sary, in order to obtain evidence, to examine witnesses on commission
in America. It rests, however, with the discretion of the court
whether a commission to examine witnesses abroad shall be granted
or not. If a commission be not granted, it would be necessary fpr

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the witnesses to journey to this colony to give evidence. It would
therefore be advisable for alien creditors, whenever possible, to ob-
tain some acknowledgment of debt from debtors before delivering
goods to them.

(2) In liquidated cases, clients must send power of attorney and
the document upon which the claim is founded. This document,
being an acknowledgment of debt, is prima facie evidence, and
therefore requires no proof.

In unliquidated cases, proof of the debt is required; for, until
proved, the debt is not presumed to be due.

The courts are: (i) Magistrates' courts; (2) high courts; (3) su-
preme court, which is also an appeal court.

Magistrates'courts have jurisdiction:

(i) In all cases founded upon any bill of exchange, promissory
note, or other written acknowledgment of debt, commonly called a
liquidated document, in which the sum demanded shall not exceed
^^250 ($1,216).

(2) Up to ;^ 1 00 ($486) in unliquidated cases for price of mer-
chandise, goods, or other movable property; and .up to ^^20 ($97) in
all other unliquidated cases.

(3) No magistrate shall have jurisdiction in or cognizance of any
action or suit wherein the title to any lands or tenements, or the
title to any fee, duty, or office is in question, or any action or suit
to try the validity of any will or other testamentary instrument, or
any action or suit whereby rights in future can be bound.

- Costs in the magistrates' courts are fixed by tariff and are low,
amounting to at most a couple of pounds sterling.

High courts have jurisdiction in all suits arising in their own dis-

Supreme court has jurisdiction in all suits arising anywhere
within the colony.

There is an appeal from the magistrates' courts to the high courts
or supreme court. In certain cases, there can be an appeal to the
Privy Council in England from the supreme or appeal court.

In order to appeal to the Privy Council, the amount in dispute or
the matter at issue should be above the value of ;^5oo ($2,433);
or the judgment should involve a question of property of the value
of at least ^^500; or, if the case be one of civil right, it should amount
to the value of ^^500.

Costs in the high courts and supreme court are considerable and
can not be fixed, depending on the nature of the suit, number of
counsel employed, number of witnesses called, etc.

Costs are usually paid by the unsuccessful party. Of course, if
he is not in a position to pay, the successful party would have to pay
the cost of his own counsel and solicitors.

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The following memorandum of the law in British Guiana with
respect to the collection of debts by aliens was prepared for the
Philadelphia Commercial Museum by Consul Moulton, of George-
town, and transmitted under date of November 3, 1898:*

In British Guiana, by the effect of the supreme court ordinance,
1893, and the rules of court passed thereunder, based upon the rules
of the supreme court in England, the procedure for the collection of
debts has been assimilated to that in force in the latter country.

Actions (other than those in which procedure by summary cita-
tion is followed, as mentioned below) are commenced by filing a
claim and serving a citation, to which appearance must be entered
within ten days after service. Service must be effected personally
if practicable; but, if not, an order for substituted service can be
obtained, or leave to effect service out of the jurisdiction.

In all actions where the plaintiff seeks only to recover a debt or
liquidated demand in money payable by the defendant, with or with-
out interest, arising (i) upon a contract expressed or implied (as, for
instance, upon a bill of exchange, promissory note, or check), or on
a bond, or contract for payment of a liquidated sum of money; or

(2) on a statute v^ere the sum sought to be recovered is a fixed
sum of money or in the nature of a debt other than a penalty; or

(3) on a guaranty, where the claim against the principal is in respect
of a debt or liquidated demand only; or (4) in actions for the recov-
ery of land with or without a claim for rent or mesne profits by a
landlord against a tenant whose term has expired or has been duly
determined by a notice to quit, or against persons claiming under
such tenant — the plaintiff may file his claim in a summary form and
cite the defendant by a summary citation to appear on a fixed day,
not less than ten days after service, to see the plaintiff admitted to
recover his claim and costs forthwith by summary execution.

In default of appearance to a summary citation, the plaintiff ob-
tains immediate judgment on filing an affidavit verifying the cause
of action.

If appearance is entered to a summary citation, the plaintiff may,
on an affidavit verifying the cause of action and stating that in the
belief of the deponent there is no defense to the action, move for
liberty to enter final judgment, the motion being returnable not less
than four clear days after service of notice thereof. Against such
application the defendant may show cause by affidavit. If prima

♦ Copy lias been sent to the museum.

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facie a good defense is disclosed in such affidavit, the defendant
will be given unconditional leave to defend, and the action will pro-
ceed as in cases not commenced in summary form. If, however, a
prima facie case is not made out, the plaintiff will have immediate
judgment. If the defense shown applies to part only of the plain-
tiff's claim, he will obtain judgment for the part admitted, leave to
defend being given as to the remainder. In doubtful cases, leave
to defend may be given conditionally upon payment into court of
the amount claimed, or security being given for it, or on such other
terms as the court may think fit.

It will be seen that the class of claims capable of being recovered
by summary process is a wide one and covers nearly all ordinary
commercial transactions.

If no appearance is entered to a claim in the ordinary, as distin-
guished from summary, form, the plaintiff may set the case down for
hearing ex parte, when he can obtain judgment on proving his case.
Appearance may, however, be entered at any time before such hear-
ing. After appearance, contested actions proceed to trial after the
close of the usual pleadings. There are at the present time no arrears
in the civil business of the court, and, as the only interruptions to
the trial of civil causes occur from the sessions of the criminal courts
and the long vacation, extending from July i to September 30, it
may be taken that even a contested action will be heard and de-
termined within from four to six months after its commencement,
and usually less, especially if it falls within the limited jurisdiction
of the court.

Actions where the amount of the claim, whether for debt or dam-
ages, or the subject-matter of the action does not exceed $2,500, and
all actions in respect of such claims as may be recovered by process
of summary citation, fall within the limited jurisdiction of the court
and are heard and determined by a single judge. The trial of such
actions is generally reached within two or three months.

Other actions are determined by the full court, consisting of a
chief justice and two puisne judges.

An appeal lies to the full court from the decision of a single judge
in respect of a sum of $250 or upwards, and from the full court to
the judicial committee of the privy council in England wh^re the
judgment appealed from is in respect of a sum or matter at issue
above the amount or value of ;^5oo.

All judgments in British Guiana for an ascertained amount carry
interest at the rate of 6 per cent per annum.

In actions for sums not exceeding $500, the costs recoverable from
the defendant by a successful plaintiff are fixed at 10 percent on the
amount of the claim, with all necessary disbursements. In actions

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where the subject-matter exceeds that sunj, the costs are taxed ac-
cording to a statutory tariff, and would amount, inclusive of dis-
bursements, to from $120 to $150 in the case of a judgment obtained
by process of summary citation, and to from $300 to $500 in the case
of a contested action before the full court when not unusually compli-
cated or protracted. In all actions the subject-matter of which ex-
ceeds $250, a barrister is required to act with a solicitor, and, by
the custom of the profession, the tariff costs are divided equally be-
tween them. In contested actions or cases of exceptional difficulty,
retaining fees, varying in amount with the nature of the case, are
usually paid to both on the commencement of proceedings.

An important protection to creditors in British Guiana lies in the
fact that all immovable (real) property is held by registered title,
and can be transported (disposed of) or mortgaged only after three
successive advertisements in the Official Gazette of the colony, pub-
lished weekly, during which period any creditor for a liquidated
amount has the right to oppose and prevent the passing of the trans-'
port or mortgage advertised, unless the amount of his claim is paid
into court or security for it given.

A debtor can also be arrested on a warrant and prevented from
leaving the colony by any creditor to whom he owes a debt exceed-
ing $100. The arrest can not be sustained if the debtor finds security
or consents to judgment for the claim, but the inconvenience of the
arrest is often a material assistance to obtaining payment of a debt.

No action can be commenced by or on behalf of a plaintiff
(whether an individual or a corporation) residing out of the colony,
unless he is represented by an inhabitant of the colony holding a
power of attorney authorizing him to take legal proceedings.

A plaintiff residing out of the colony may also be required to
find security for costs, either by a bond with two or more sureties
or by deposit in court of a sum in cash not exceeding $250.

Powers of attorney executed in a foreign country must be exe-
cuted in presence of two witnesses, who must subscribe their names
thereto, and before a notary public, who must certify under his sig-
nature and seal that the power of attorney waj executed by the
grantor in the presence of such witnesses and before him. And
the fact that the person before whom the power of attorney is exe-
cuted is a notary public of such foreign country must be certified
and legalized under the hand or seal of any officer of state, court,

Online LibraryUnited States. Dept. of Commerce and Labor United States. Bureau of Foreign CommerceConsular reports, Issues 224-227 → online text (page 21 of 92)