20 Discharge of Defendant. From this detention the defendant may make application to be discharged, either to the court or to the mayor and bailiffs of Berwick-upon-Tweed, [or as the case may be], greeting. We command you that you omit not by reason of any liberty in your bailiwick, but that you enter the same, and take C. D. if he shall be found in your bailiwick, and him safely keep until he shall have given you bail, or made deposit with you according to law, in an action on promises [or of debt, &c.] at the suit of A. B., or until the said C. D. shall by other lawful means be discharged from your custody. And we do further command you, that on execution hereof, you do deliver a copy hereof to the said C. D. And we hereby require the said CD. to take notice, that within eight days after the execution hereof on him, inclusive of the day of such execution, he should cause special bail to be put in for him in our court of [Queen's Bench, Common Pleas, or Exchequer of Pleas], to the said action; and that in default of so doing, such proceedings may be had and taken as are mentioned in the warning written or endorsed hereon. And we do further command you, that immediately after the execution hereof you do return this writ to our said court of [name of court], together with the manner in which you shall have executed the same, and the day of the execution thereof; or if the same shall remain unexecuted, then that you do so return the same at the expiration of one calendar month from the date hereof, or sooner if you shall be thereto required by order of the said court, or by any judge thereof. Witness [name of chief justice or senior puisne judge], at Westminster, theday of 1838. Memorandum to be subscribed to the Writ. This writ is to be executed within one calendar month from the date thereof, including the day of such date, and not afterwards. A warning to the defendant. If a defendant, having given bail on the arrest, shall omit to put in special bail as required, the plaintiff may proceed against the sheriff or on the bail bond. Indorsements to be made on the writ. Bail for -pounds, by order of [naming the judge making the order], dated thisday of -1838. New Writs to be Framed. 21 whence the writ issued, or to a judge at chambers, whose order may be appealed from or varied by the court, s. 6; so that it appears, the most regular and conclusive practice will be, for the defendant to make his application to the court, if in term time, and to the judge sitting at chambers, in vacation. The judges of the courts of law,* equity, or bankruptcy, may frame such writs for the purpose of enforcing their decrees, rules, and orders, as they may from time to time think fit, which writs are to be enforced in the same manner as writs of excution were enforced before the passing of this act, or as near thereto as circumstances will admit, s. 20. All persons in custody on mesne process, issued according to the old practice, are to be discharged on the 1st October, 1838, except those who shall have filed petitions under the Insolvent Debtor's Act, which is continued in the present act. But any person being so discharged may be arrested again at the suit of the same or This writ was issued by E. F. ofplaintiff [or plaintiffs] within named. Or, attorney for the This writ was issued by the plaintiff within named, who resides at- [mention the city, town, or parish, and also the name of the hamlet, street, and number of the house of the plaintiff's residence, if any such there be].-Schedule to the act. *By this it will be observed, that courts of equity have the power of enforcing their decrees or orders by writs of fieri facias, in the same manner as the courts of common law (see post, p. 29.) The courts of law or equity will not permit (it may fairly be inferred) attachments or writs in the nature of a ca. sa. or fi. fa. to issue without a previous application, so as to give the court judicial information of the default of the party ordered to pay the money. 22 22 New Act of Bankruptcy. As any other plaintiff, if his case comes within the third section, s. 7. Prisoners in execution, or contempt, are not, of course, to be liberated. the preceding clauses have abolished imprisonment on mesne or first process, (except in the instances before noticed), it follows, that the 6 Geo. 4, c. 16, s. 4, (the Bankrupt Act), which declares an uninterrupted imprisonment for 21 days, at the suit of a creditor for a legal debt, or an escape from custody under such imprisonment, to be an act of bankruptcy, will henceforth operate but in a very trifling amount of cases, and thereby in a great measure neutralize the power that creditors possessed of testing their debtor's solvency by an arrest or holding to bail; to supply, therefore, such remedy, a new and additional act of bankruptcy it substituted for the one now necessarily about to fall into disuse; for, by the present act, it is declared, That if any single creditor, or any two or more creditors being partners, whose debt shall amount to one hundred pounds or upwards, or any two creditors whose debts shall amount to one hundred and fifty pounds or upwards, or any three or more creditors, whose debts shall amount to two hundred pounds or upwards, of any trader within the meaning of the laws now in force respecting bankrupts, shall file an affidavit or affidavits in Her Majesty's Courts of Bankruptcy, that such debt or debts is or are justly due to him or them respectively, and that such debtor, as he or they verily believe, is such trader as aforesaid, and shall cause him to be served personally with a copy of such affidavit or affidavits, and with a notice in writing requiring immediate payment of such debt or debts; and if such trader shall not within twenty-one days after personal service of such affidavit or affidavits and notice, pay such debt or debts, or secure or com Effect of Execution Enlarged. 23 pound for the same to the satisfaction of such creditor or creditors, or enter into a bond, in such sum, and with such two sufficient sureties as a commissioner of the Court of Bankruptcy shall approve of, to pay such sum or sums as shall be recovered in any action or actions which shall have been brought, or shall thereafter be brought for the recovery of the same, together with such costs as shall be given in the same, or to render himself to the custody of the gaoler of the court in which such action shall have been or may be brought, according to the practice of such court, or within such time and in such manner as the said court or any judge thereof shall direct, after judgment shall have been recovered in such action, every such trader shall be deemed to have committed an act of bankruptcy on the twenty-second day after service of such affidavit or affidavits and notice, provided a fiat in bankruptcy shall issue against such trader within two calendar months from the filing of such affidavit or affidavits, but not otherwise, s. 8. And thus the law may now be said to stand in respect of arrest on mesne process or holding to bail. The effect of final process, which can only be had through a judgment by default, or upon verdict being considered in relation to its effect upon the property of the debtor in the next division. II. The act reciting that the [then] existing law was defective, in not providing adequate means for enabling judgment creditors to obtain satisfaction from the property of their debtors, and the expediency of giving judgment-creditors more effectual remedies against the real and personal estate of their debtors than they possessed under the law as it then stood, enacted-1. That 24 Execution against Real Property.-Elegit it shall be lawful for the sheriff or other officer to whom any writ of elegit, or any precept in pursuance thereof, shall be directed, at the suit of any person, upon any judgment which, on the 1st October, 1838, shall have been or shall be thereafter recovered in any action in any of Her Majesty's superior* courts at Westminster, to make and deliver execution into the party in that behalf suing of all such lands, tenements, rectories, tithes, rents, and hereditaments, including lands and hereditaments of copyhold or customary tenure, as the person against whom execution is so sued, or any person in trust for him, shall have been seised or possessed of at the time of entering up the said judgment, or at any time afterwards, or over which such person shall at the time of entering up such judgment, or at any time afterwards, have any disposing power which he might without the assent of any other person exercise for his own benefit, in like manner as the sheriff or other officer may now make and deliver execution of one moiety of the lands and tenements of any person against whom a writ of elegit is sued out; which lands, tenements, rectories, tithes, rents, and hereditaments, by force and virtue of such execution, shall accordingly be held and enjoyed by the party to whom such execution shall be so made and delivered, subject to such account in the court out of which such execution shall have been sued out as a tenant by elegit is now subject to in a court of equity, s. 11, with a proviso that the lords of manors shall not be damnified in respect of the fines due on copyholds, and with a declaration * With respect to the judgments of inferior courts (the Marshalsea court for instance), see post, p. 32, and the note there. |