Objects of the new Law.—Arrests.

15

in its place. To return to the Act: by the preamble it is stated to have for its object three things, which are set forth in the title, viz.-1. The abolishing arrest on mesne process, except in certain cases; 2. The extending the remedies of creditors against the property of debtors; and, 3. The amending the laws for the relief of insolvent debtors, which may be treated of under three divisions. In the first of which will be stated the cases in which arrest on first process will be allowed. In the second, the remedies by individual creditors against the debtor's estate; and in the third division, some account will be given of the constitution and practice of the Insolvent Debtors' Court, as extended with reference to the distribution of the estate amongst the general body of the creditors.

I. Arrests on civil process are either provisional, or a holding to bail," i. e. the defendant is liberated on finding bail to answer the action, or final or in " execution," i. e. in conformity to, or in execution of a judgment which concludes the suit, in which case the defendant cannot be discharged on bail, but must remain in custody till payment or satisfaction of the judgment be made. "Attachments" for non-payment of money may be considered as process of execution.

The provisional arrest took place where the plaintiff in any action made affidavit that the defendant was indebted to him in not less than 201., exclusive of costs or interest; or where in cases of special injury a judge, by his order made at chambers, permitted a defendant to be holden to bail for that or a greater amount upon a writ of capias, directed to the sheriff of a particular county or city, who thereupon issued his warrant

16

Capias in nature of a Ne Exeat.

to his bailiff, authorizing the capture of the defendant, who being taken, found bail below," i. e. signed a bail bond, or made a deposit of a competent sum, as will be presently noticed. After the expiration of eight days' bail to the action or "bail above" was to be put in, or the defendant rendered to gaol, or if out of custody on the bailbond, his bondsmen became liable to the sheriff, who, in his turn, was liable to the plaintiff. The present act, it has been already stated, abolishes all arrest on mesne, first or provisional process, i. e. holding to bail; and directs that all future actions be commenced by serviceable process, except in the case next noticed, in which the arrest will be conducted in the same manner as heretofore, ss. 1, 2.

Arrest of a Defendant about to quit England.If a plaintiff in any action in any of Her Majesty's superior courts of law at Westminster, in which the defendant is now liable to arrest, whether upon the order of a judge, or without such order, shall, by the affidavit of himself or of some other person, show, to the satisfaction of a judge of one of the said superior courts, that such plaintiff has a cause of action against the defendant or defendants to the amount of twenty pounds or upwards, or has sustained damage to that amount, and that there is probable cause for believing that the defendant, or any one or more of the defendants, is or are about to quit England unless he or they be forthwith apprehended, it shall be lawful for such judge, by a special order, to direct that such defendant or defendants so about to quit England shall be held to bail for such sum as such judge shall think fit, not exceeding the amount

Inferior courts (the Marshalsea Court for instance) have now no power to hold to bail.

Capias in Nature of Ne Exeat.

17

of the debt or damages; and thereupon it shall be lawful for such plaintiff, within the time which shall be expressed in such order, but not afterwards, to sue out one or more writ or writs of capias into one or more different counties, as the case may require, against any such defendant so directed to be held to bail, which writ of capias shall be in the form contained in the schedule to this act annexed, and shall bear date on the day on which the same shall be issued, s. 3.

The circumstance of a defendant being about to quit England should be carefully and satisfactorily proved by affidavits, which must state the fact of a debt being due, with some corroborative evidence or testimony on that head, and also detail circumstances from which the inference can be satisfactorily drawn, that the defendant is about to withdraw himself from the jurisdiction of the courts here. An intention shown in the defendant of even going to Ireland or Scotland, will suffice to give the judge jurisdiction; the intended departure need not be shown to be one in which a stay on the continent is contemplated. It would seem also, that a declared intention of a defendant to make a mere temporary sojourn or trip of pleasure on the continent or elsewhere, will justify the issuing of such an order, if a debt can be proved. But plaintiffs will (in all probability) be bound to swear, that, from such and such circumstances they verily believe that the defendant is about to quit England, stating such facts as must necessarily ground the presumption, that such intended departure can be but for one purpose, viz. the delaying or defrauding of their creditors or the plaintiff. This new process is evidently intended to have the effect of a ne exeat regno, a writ which issues

C

18

Writ of Ne Exeat Regno.

out of chancery to restrain a person from going out of the kingdom without the queen's licence; the object of this writ (which in former days was used for state purposes, and was a prerogative writ), is for the purpose of preventing a party from removing his person beyond the process or jurisdiction of the court, before a judgment could be given or carried into execution. It may therefore not be inapt to mention some of the decisions which have been made in respect of the granting that writ, to illustrate the discretionary power vested in a single judge by the present act, and the cases in which it is likely such power will be exercised.

The affidavit of a threat or intention to go abroad must be positive, not upon information and belief. 8 Ves. 597; 16 Ves. 470. But the court acts on evidence of design to go, without regard to denial. 3 Swanst. 375. And notice of motion for the writ need not be given, for that might defeat its object. 18 Ves. 355.

The demand for which a ne exeat may be issued must in general be equitable,* and not legal, except in the case of an account. 1 Ball & B. 327. It must be completely due, and be such a debt that the sum to be marked on the writ may be ascertained. 3 Swanst. 377. 1 Turn. & Russ. 343. This writ may be obtained by a British subject against a foreigner who happens to be in this country, to enforce the adjustment of an account upon a foreign transaction, although, according to the law of that country, the foreigner could not there have been held to bail. 1 Jac & W. 405. And see 1 B. & Ald. 284.

The granting it is matter of discretion; and as

*This case is not applicable to the new capias which is issued out of the courts of law.

Arrest upon Capias of Ne Exeat Regno. 19

it is a severe process, and such use of it is a departure from its original purpose, the discretion is exercised with great caution. See 1 Ves. Jun. 94; 7 Ves. 171; 1 Turn. & Russ. 322.

Inferior courts cannot issue this capias, but the Palatine courts may, if the judge be also a judge of the superior courts.

The arrest still allowed by this 3rd section, is to be effected within one calendar month, inclusive of the date, and the defendant is detained thereupon until he gives bail, or makes deposit,* according to the former and still continued practice of the courts; and this judge's order to arrest may be made at any time after the commencement of, and before final judgment obtained in any action, ss. .5,6. The form of the writ which issues on such judge's order is given in the note.†

* If a defendant, instead of applying to his friends or neighbours to sign a bail bond, choose to pay the sum indorsed on the writ as sworn to, and 107. for costs, in lieu of bail, the sheriff is bound to discharge him as to that cause of action. If the defendant, within due time, puts in bail to the action, the total deposit is returned to him, otherwise the plaintiff may take the money out of court upon application, such application, however, to be made before the defendant does put in bail above; (the meaning of this term is explained at p. 2,) for if he does so, though after the due time has elapsed, the defendant cannot have the advantage of bail and money too. (43 Geo 3, c. 46, s. 2; see also, Archbold's Practice, 1838, p. 202, not the edition by Mr. Chitty, where the law and practice is lucidly stated). If the defendant, however, desires to defend the action without putting in bail above, he may pay into court the further sum of 101. in lieu of such bail, 7 & 8 Geo. 4, c. 71, s. 2. + No. 1.-Writ of Capias.

VICTORIA, by the grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith, to the sheriff ofor to the constable of Dover Castle,