Page:The New International Encyclopædia 1st ed. v. 06.djvu/40

DEBT. a sum of money due upon a certain and expressed agreement. This obligation may be founded on simple contract, be contained in a sealed instrument, or be established by the judgment of a court. In this meaning a debt is a definite sum due, not merely a claim for damages. In some applications, however, the word has been much more broadly used, and it is probable that most courts would not confine it to the strict definition above given, unless required so to do by the context of a law or the special circumstances of the case. Thus, it has been held that a debt may be a certain sum of money promised to be paid in the future as well as a sum already actually due and payable; but if the sum be payable upon a contingency at a future time it cannot properly be called a debt. In its more general sense debt is that due from one person to another, whether money, goods, or service; under the United States legal-tender statutes the term embraces any obligation by contract, expressed or implied, which may be discharged by money through the voluntary action of the party bound; where a statute prohibits a city from increasing its indebtedness, it is held that for that city to give its corporate bonds for the future payment of valuable property would violate the prohibition; a bequest of ‘whatever debts’ might be due the testator at the time of his death has been held to include money deposited with his bankers; a tax is not of the nature of a debt, not being founded on contract, but being rather an impost laid by a government.

Under the dual form of government which obtains in this country, an important question in regard to debts was raised as to the provision of the United States Constitution forbidding the several States to pass laws impairing the validity of contracts. It was questioned whether an insolvency law adopted by a single State did not violate this provision, where it allowed a debt already existing to be canceled upon the debtor's complying with the regulations of the Insolvency Act. It has been settled by the courts that the States have the right to legislate in this manner, but subject to the power of the United States to enact a uniform law of (q.v.). Of course a State's insolvency law cannot impair the obligation of a contract existing before its passage. But in all contracts implying a debt entered into after its passage, it will be presumed that the parties to the contract have in mind the provisions of such law.

Historically, there has been a remarkable and interesting change in the way in which the law has dealt with the debtor and provided legal methods for the recovery of the debt. In ancient times the delinquent debtor was practically handed over to the tender mercies of his creditor; under the Mosaic law, in Greece and Rome, and in England under the Saxon rule, the debtor was made the actual slave of his creditor. A change followed under the feudal system, owing to the fact that the feudal idea required frequent military service, and imprisonment of the person for debt was not consistent with that theory. As the feudal system fell into disuse and the importance of trade and commerce increased, there was again a change toward the harsh treatment of the debtor, and it is only within our own time that imprisonment for debt has been generally abolished. The present tendency of legislation is to afford an easy and simple procedure, so that

undisputed debts may be adjudicated upon quickly, and as summarily as is consistent with the right of defense and of appeal. The action of debt or the simple substitutes therefor provided by the reformed procedure in England and this country, is a civil suit, whose worst result is a money judgment and an execution levied on the property of the debtor for its satisfaction. Where the element of fraud, false pretenses, or concealment of property enters into the question, the courts still possess, both in England and the United States, power to restrain and under some conditions even to imprison the debtor. For a fuller exposition of these principles and of other matters relating to phases of the general subject, see ; ; ; authorities referred to under the titles treating of specific subjects, such as ; ; Encyclopædia of English Law; Bell, Commentaries on the Statutes Relative to Diligence, or Execution Against the Movable Estate; Imprisonment, etc. (Edinburgh, 1890), where a history of imprisonment for debt will be found; the general treatises such as the Commentaries of Kent, Blackstone, Stephen, Bell, Erskine, etc., referred to under.  DEBT,. One of the old forms of personal actions in common-law pleading, being used, under that system, to recover a sum certain, or capable of being ascertained by computation only. Formerly the declaration alleged the debet et detinet, on the theory that the defendant owed the money and was guilty of an unjust detention of the goods or whatever happened to be the consideration, but this fell into disuse and is no longer proper. Where the obligation is founded on a simple contract the declaration must allege the consideration, and if on a specialty or on a record it must be set out in full. It differs from (q.v.), where a special promise is necessary. It is still retained in some of the United States where common-law pleading is used, but has been abolished by statute in England, where it originated. See also, and consult the authorities there referred to.  DEBT,. National debt has become a marked feature in the finances of modern States. In any strict sense the public debt designates all of the outstanding obligations of the government. These are of many kinds. Among them, for instance, in those States which conduct government savings banks must be included the sums due depositors. In countries which, like France, require the collectors of taxes to make payments at specified times, advancing if need be from their own resources the amount required, such advances must for the time being be regarded as part of the national debt. But it is not with these informal obligations, which correspond somewhat with the book debts of merchants, that the phrase ‘public debt’ is generally concerned. It refers rather to the more formal obligations undertaken by governments and represented by formal instruments of indebtedness.
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This formal debt may be divided into short-term and long-term obligations. To the former is frequently applied the expression ‘floating