51 - February 2011
Enforcement and Mr Pickwick
Once you get judgment against a debtor that is not the end. You must enforce it, in order to get your money. Enforcement means making the debtor bankrupt, or wound up, or publically examining the debtor in court, using a bailiff to seize and sell his or her possessions or docking the debtor's wages. Tactics depend on cost and the chances of getting paid. However, you cannot get blood out of a stone and even the nicest of creditors can be so frustrated by the process that he would cheerfully opt for a pound of flesh if that option were available.
In the past when someone owed you money one of the common and popular enforcement options was to cast him (or her) into a debtor’s prison where they would rot until they paid up with interest and costs.
This is what happened to Mr Pickwick in The Pickwick Papers. He was accused of breach of promise in that he offered to marry his housekeeper, she had accepted and then he reneged. It was a misunderstanding. But he was sued and the housekeeper won. He was ordered to pay damages and the housekeeper’s legal costs. He refused to pay. The housekeeper’s lawyers applied to the court to enforce the judgment and Mr Pickwick was committed to the Fleet debtors’ prison where he was to remain until he paid the damages and costs. But he continued to refuse to do so and gave every appearance of being prepared to stay there until he died.
The housekeeper’s solicitors had planned to receive their costs from Mr Pickwick and when this looked unlikely they claimed against the penniless housekeeper, obtained judgment and enforced it by committing her to the Fleet, as well.
When Mr Pickwick found out the housekeeper was in the Fleet, being a kind man he relented and agreed to pay her costs and in return the housekeeper abandoned her claim against him for damages. They were both released, the lawyers were paid their fee, a happy ending of sorts.
Legal cases do not always work out this well.
(c) Paul Brennan is a business and property lawyer on the Sunshine Coast, Queensland. Both "Deals and disputes".
Death of a solicitor
Many people ask me what is the difference between a barrister and a solicitor. Well, they are both lawyers but the main difference, in my view is that only one practicing solicitor has ever been executed.
Rather than turning on his own clients as some would expect, he attempted to poison another solicitor in a conveyancing matter which had turned sour. His first attempt was to invite the solicitor to tea; scones laced with arsenic. The other solicitor became ill, but survived. He then sent chocolates which caused a family member of the other solicitor to be sick, but she survived too. Numerous further invitations to tea followed which the other solicitor understandably avoided.
The solicitor’s undoing was that he was buying increasing quantities of arsenic from the local chemist who was the father in law of the other solicitor. The matter was reported to the police who during their enquiries dug up the solicitor’s deceased wife and found an unusually high concentration of arsenic in the body. He was charged with murder. He claimed he was devoted to his wife but police investigations revealed that although she was described in the local press as popular very few people attended her funeral. They concluded that she was domineering and often acted in a crazed manner but this was no lawful excuse for murder (husbands please note).
The solicitor continued to maintain that the arsenic was for his dandelions until his execution in 1922. Since then the Dandelion Defence has lost popularity especially among devoted husbands.
(c) Paul Brennan. All rights reserved.
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