Page images
PDF
EPUB
[merged small][merged small][merged small][ocr errors][merged small][merged small][merged small]

The Act, intituled, " An Act for abolishing Arrest on Mesne Process * in Civil Actions, except in certain cases ; for extending the Remedies of Creditors against the property of Debtors; and for amending the Laws for the Relief of Insolvent Debtors in England,which became part of the law of the land on the 16th August, and comes into operation on the 1st October, 1838, is of great

* The term mesne process," in reference to the present Act, in effect, means first process, or that process which is used (whether bailable or serviceable) to compel the appearance of a party summoned in a superior or an inferior court, to answer the plaintiff; its legal meaning is “middle," or subsequent process, and intends to describe generally any process intervening between the “ original writ,” which the law feigns or presumes to have issued, and the final process or writs of execution which terminate the suit. By the ancient practice of the courts, “original writs set forth the cause of action at length, in the form of a “declaration,” the first of the pleadings in a civil action, and which contains a statement of the plain

B

[blocks in formation]

public importance; not only as it affects the personal interests of the multitude, but also with regard to the commercial interests and property of the country, by the means which are thereby afforded of enforcing the performance of contracts, and of limiting useless and improper credit.

To fully explain the operation of this Act in its numerous details, it is requisite that some information be afforded the reader upon the whole law of debtor and creditor, both as it lately stood and as it now stands, in order that the present measure may be fully understood, and its benefits made available.

The proceedings that an individual creditor has hitherto been able to adopt, in order to enforce payment of a demand against his debtor to an amount of 201. and upwards, have been to issue a process, called a “capias ad respondendum,”* which writ

tiff's cause of action in apt and technical form, the subsequent process upon which the defendant was taken was generally the process he was called upon to answer, and by degrees it became usual to issue the mesne writ without suing forth the original ; " original writs," on account of the abuse of these processes, were afterwards not permitted to issue for a less amount than 501.; but in all cases where the "original" did not issue the writ was presumed to have issued. However, the Act for uniformity of process, 2 Will. 4, c. 39, enacted, that all suits thenceforward should be commenced by capias or writ of summons, which actuaily abolished the "original,” and should, by a natural consequence, have destroyed the attendant fiction of mesne process, which now is, in fact, the first, though not in law deemed the original writ.

* Capias ad respondendum, and capias ad satisfaciendum, are the operative words of the writs which bear these names, which formerly were in Latin, and are now translated " that you (meaning the sheriff) take (A. B.) to answer, or, satisfy" (C. D.) as the case may be.

[blocks in formation]

issued on an affidavit of the plaintiff's debt, and authorized the caption of the debtor's body; the debtor, on being arrested, might give two substantial bail, or go to prison until he found such bail, or he was discharged by finding such bail, making deposit, by verdict, supersedeas by reason of the plaintiff's default in not proceeding to judgment, or by payment of the debt and costs. The bailing a debtor was a cumbrous and very expensive process, inasmuch as there was first a preliminary bail or security to be given to the sheriff for the defendant's appearance at the return of the process, which was termed “bail below," and another bail after the return of the process, being the recognizance of two housekeepers or freeholders, (frequently the same persons who had signed the security to the sheriff,) termed

“ bail to the action," or “ bail above," the condition of such recognizance being, that the defendant was to surrender himself to custody, or in default of his so doing, on judgment being obtained against him, to satisfy such judgment as far as the recognizance extended, viz. to twice the amount of the debt sworn to and indorsed on the process; i. e. if the plaintiff did not proceed against his goods as next mentioned.

This process of capias and bail brought the defendant before the court, and the action proceeded to judgment, at which period the defendant, if convicted, either paid the debt and costs, suffered the same to be levied upon his goods by writ of fieri facias [fi. fa.], was taken to prison by writ of “

capias ad satisfaciendum” (ca. sa.), surrendered himself to gaol, or in default of such render the bail paid for him. The processes by

[blocks in formation]

(6

fi. fa." in pre

which a judgment of the superior courts was, and still may be, enforced, will be noticed incidentally hereafter.

If the debt was under 201. the debtor was served with a "writ of summons,” a process which required the defendant to enter an appearance iu the court out of which the writ issued (a mere formal and technical act), and in default of his so doing, empowering the plaintiff to do so for him; and the defendant being thus brought before the court, the action proceeded to judgment and execution, which was enforced in the same manner by writ of

ca. sa.,' or by a levy upon the debtor's goods, by the writ of cisely the same form as in the case where he had been previously held to bail.

Many inferior courts, whose practice is in most cases assimilated to that of the superior courts, possessed the power of arrest for debts above 201. In cases of debt under 201. a serviceable process, in effect the same as a writ of summons, issues from these jurisdictions. See post as to inferior courts, p. 32, and the note there.

In debts above 201. in amount, the creditor or plaintiff was at liberty to avail himself of this simple process, and could waive the right of arresting his debtor ; but this forbearance was not very often practised, and consequently an unprincipled or harsh creditor was enabled to distress his debtor and expose him to various abuses. | Persons in custody for debt could also be detained by the process termed a “ writ of detainer." Besides these processes,

the courts of law and

« PreviousContinue »