138 or information, wherein no essoign, protection, or wager of law, nor more than one imparlance, shall be allowed; one moiety of which penalty shall be paid to his Majesty, his heirs and successors, and the 44 Geo. III. other moiety thereof to him or them who shall sue for the same, together No. XXXVII. c. 13. with full costs of suit. "Limitation of actions, three calendar months-Venue in the county. [ No. XXXVIII.] 48 George III. c. 123.-An Act for 48 George III. WH c. 123. Persons having lain in prison for a year in execution on judgment of any court, whether of record or not, for any debt or da VHEREAS it might tend greatly to the relief of certain debtors in execution for small debts, and at the same time occasion no material prejudice to trade and public credit, if such debtors should, 'after a limited period of imprisonment, be allowed the benefit of a discharge therefrom, the creditors at whose suit they were so in exe'cution being at the same time authorized to take out other writs of ⚫ execution against the land and goods of such debtors, or to use other ' remedy for the satisfaction of their debts, as if the persons of such ' debtors had never been taken in execution;' Be it therefore enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That from and after the passing of this Act, all persons in execution upon any judgment in whatsoever court the same may have been obtained, and whether such court be or be not a court of record, for any debt or damages not exceeding the sum of twenty pounds, (1) exclusive of the costs recovered by such judgment, and who shall have lain in prison thereupon for the space of twelve successive calendar months next before the time of their application to be discharged as hereinafter mentioned, shall and may, upon his, her, or their application for that purpose in term-time made to some one of his Majesty's superior Courts of Record at Westminster, to the satisfaction of such court, be forthwith (2) discharged out of custody, as to such execution, by the rule or order of such court: Provided always, That in the case of any such application being made to be discharged out of execution upon a judgment obtained in any of his Majesty's superior Courts of Record at Westminster, such application shall be made to such one of those courts only, wherein such judgment shall have been obtained, and that whether the person so in execution shall then be actually detained in the gaol or prison of the same court, or shall then stand committed on Habeas Corpus to the gaol or prison of another court: Provided always, that if it shall happen that any such discharge shall have been unduly or fraudulently obtained upon any false allegation of circumstances, which if true might have entitled charge, may be the prisoner to be discharged by virtue of this Act, such prisoner shall, to the satisfaction of the court by appear the same being made whose rule or order the said prisoner had been so discharged, be liable to be again taken in execution and remanded to his former custody by Such discharge the rule or order of the same court: Provided also, That no sheriff, gaoler, or other person whatsoever, shall be liable as for the escape of any such prisoner in respect of his enlargement during such time as he shall have been at large, by means of such his undue discharge as aforesaid: Provided always, That for and notwithstanding the discharge of any debtor or debtors by virtue of this Act, the judgment whereupon charged shall any such debtor or debtors was or were taken or charged in execution, remain liable. shall nevertheless continue and remain in full force to all intents and mages not ex- Persons fraudulently obtaining dis retaken in execution, &c. no escape. Estate of the debtors so dis upon (1) The Act extends to costs under 207. recovered upon judgment of nonsuit; Roylance". Hewling, 3 M. and S. 282. (2) On a motion for the discharge of an insolvent debtor under the statute 48 George III. c. 123. § 1. the rule is in the first instance only a rule misi; Ex-parte Neilson, 7 Taunt. 467. No. XXXVIII. purposes, except as to the taking in execution the person or persons of such debtor or debtors thereupon, as is hereinafter provided: And that it shall and may be lawful for the creditor or creditors at whose suit such debtor or debtors had been, was or were so taken or charged in 48 Geo. III. execution, to take out all such execution or executions on every such judgment against the lands, tenements, hereditaments, goods, and chat c. 123. tels of any such debtor or debtors (other than and except the necessary Except neceswearing apparel and bedding of and for him, her, or them, and for his, saries. her, or their family, and the necessary tools for his, her, or their trade or occupation, not exceeding the value of ten pounds in the whole ;) or to bring any such action or actions on any such judgment against such debtor or debtors respectively, or to bring any such action or use any such remedy for the recovery and satisfaction of his, her, or their demand, against any other person or persons liable to satisfy the same, in such and the same manner, but in such and the same manner only as such creditor or creditors otherwise could or might have done in case such debtor or debtors had never been taken or charged in execution upon such judgment; Provided always, That no debtor or debtors who But such shall be duly discharged in pursuance of this Act, shall at any time debtors shall afterwards be taken or charged in execution upon any judgment herein not be arrested so as before declared to continue and remain in full force, nor be in any action arrested in any action to be brought on any such judgment, and that no on such judgproceeding whatsoever by scire facias, action, or otherwise, shall be ment, &c. maintained or had against the bail in any action upon the judgment, wherein the defendant or defendants shall have been charged in execution, and afterwards discharged by virtue of the provisions of this Act. II. And be it further enacted by the authority aforesaid, That this Act shall not extend or be construed to extend to those parts of the United Kingdom of Great Britain and Ireland, which are commonly called Ireland and Scotland. [ No. XXXIX. ] 49 George III. c. 6.-An Act for the relief of Prisoners in custody for non-payment of money pursuant to orders of courts of equity.[13th March, 1809.] [See post. Title Courts of Equity.] Act not extended to Ireland or Scot land. [ No. XL. ] 51 George III. c. 124.-An Act further to extend and render more effectual certain provisions of an Act passed in the twelfth year of the reign of his late Majesty King George the First, intituled "An Act to prevent frivolous and vexatious Arrests;" and of an Act passed in the fifth year of the reign of his Majesty King George the Second, to explain, amend, and render more effectual the said former Act; and of two Acts passed in the nineteenth and fortythird years of the reign of his present Majesty, extending the provisions of the said former Acts.-[2d July, 1811.] WHEREAS by an Act made in the twelfth year of the reign of his 51 George III. late Majesty King George the First, intituled, "An Act to prevent frivolous and vexatious arrests," it was, amongst other things, 12 George I. enacted, That from and after the twenty-fourth day of June, One thousand seven hundred and twenty-six, no persons should be held to special bail upon any process issuing out of any superior court, where the cause of action should not amount to the sum of ten pounds or upwards, nor out of any inferior court where the cause of action should not amount to the sum of forty shillings or upwards; and that in all cases c. 124. c. 29. s. 1. No. XL. 51 Geo. III. c. 124. c. 27. Sect. 5. 21 George II. c. 3. where the cause of action should not amount to ten pounds or upwards in any such superior court, or to forty shillings or upwards in any such inferior court, and the plaintiff or plaintiffs should proceed by way of process against the person, he, she, or they should not arrest or cause to be arrested the body of the defendant or defendants, but should serve him, her, or them personally within the jurisdiction of the court, with a copy of the process, and if such defendant or defendants should not appear at the return of the process, or within four days after such return, in such case it should be lawful for the plaintiff or plaintiffs upon affidavit being made and filed in the proper court of the personal service of such process as aforesaid (which affidavit should be filed gratis) to enter a common appearance or file common bail for the defendant or defendants, and to proceed thereon as if such defendant or defendants had entered his, her, or their appearance, or filed common bail; which Act was explained and amended by an Act passed in the fifth year of the 5 George II. reign of his Majesty King George the Second, intituled, "An Act to explain, amend, and render more effectual an Act made in the twelfth year of the reign of his late Majesty King George the First, intituled An Act to prevent frivolous and vexatious Arrests,"": And whereas by the said Act made in the fifth year of the reign of his said late Majesty King George the Second, it was enacted, that where the cause of action should not amount to ten pounds or upwards in any superior court, or to forty shillings or upwards in any inferior court, no special writ or writs, nor any process specially therein expressing the cause or causes of action, should be sued forth or issued from any such superior or inferior court to compel any person or persons to appear thereon in such court or courts; and all proceedings and judgments on any such writ are thereby declared to be void and of none effect: And whereas the said several Acts being temporary, the same were afterwards made perpetual by an Act passed in the twentieth (1) year of the reign of his said late Majesty King George the Second; And whereas by an Act passed in 19 George III. the nineteenth year of the reign of his present Majesty, intituled, An Act for extending the provisions of an Act made in the twelfth year of the reign of King George the First, intituled, " An Act to prevent frivolous and vexatious Arrests, and for other purposes;'" it was enacted That from and after the first day of July One thousand seven hundred and seventy-nine, no person should be arrested or held to special bail upon any process issuing out of any inferior court, where the cause of action should not amount to the sum of ten pounds or upwards; but that the like copies of process should be served, and the like proceedings had thereupon in such inferior court, in all cases where the cause of action should not amount to ten pounds or upwards, as are directed to be had by the said Act of the twelfth year of the reign of King George the First, in such inferior court, where the cause of action should not amount to the sum of forty shillings; any law or usage to the contrary notwithstanding; and further provisions were made touching proceedings in such inferior courts, in conformity to the provisions in the said former Act; and so much of any Act or Acts of Parliament passed for the recovery of debts within any districts and jurisdictions, as authorized arrest and imprisonment of defendants where the cause of action should amount to less than ten pounds, was thereby repealed; and further provisions were made touching actions in inferior courts, where the 43 George III. cause of action should not amount to ten pounds: And whereas by an Act passed in the forty-third year of his Majesty's reign, intituled, "An Act for the more effectual prevention of frivolous and vexatious arrests and suits; and to authorize the levying of poundage upon executions in certain cases," it was enacted, that, from and after the first day of June One thousand eight hundred and three, no person should be arrested or held to special bail upon any process issuing out of any court within those parts of the United Kingdom of Great Britain and Ireland c. 70. Sect. 1. Sect. 3. c. 46. s. 1. (1) The twenty-first: but the original Act is so. No. XL. c. 124. No person held to special bail where cause of action under 157. (exception) Defendant not to be arrested. called England and Ireland, for a cause of action not originally amounting to such sum for which such person was by the laws then in being 51 Geo. III. liable to be arrested and held to bail, over and above and exclusive of any costs, charges and expenses that may have been incurred, recovered or become chargeable in or about the suing for or recovering the same, or any part thereof: And whereas it is expedient to extend and render more effectual the provisions of the said recited Acts: Be it therefore enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That from and after the first day of November, One thousand eight hundred and eleven, no person shall be held to special bail upon any process issuing out of any court where the cause of action shall not have originally amounted to the sum of fifteen pounds or upwards, over and above and exclusive of any costs, charges and expenses that may have been incurred, recovered or become chargeable, in or about the suing for or recovering the same, or any part thereof, (except where the cause of such action shall arise or be maintainable upon or by virtue of any bill or bills of exchange, promissory note or promissory notes, in which cases the parties liable thereupon may be held to special bail in such manner as if this Act had not been made;) and that in all cases where the cause of action shall not amount to fifteen pounds or upwards, exclusive of such costs, charges and expenses as aforesaid, (except as hereinbefore is excepted) and the plaintiff or plaintiffs shall proceed by the way of process against the person, he, she, or they shall not arrest, or cause to be arrested, the body of the defendant or defendants, (1) but shall serve him, her, or them personally within the jurisdiction of the court, with a copy of the process and proceedings thereupon, in such manner as by the said Act of the twelfth year of the reign of his late Majesty King George the First, is provided in cases where the cause of action shall not amount to ten pounds or upwards in any superior court, or to forty shillings or upwards in any inferior court; and that where the cause of action in any court shall not amount to the sum of fifteen pounds, exclusive of such costs, charges, and expenses as aforesaid, (except as hereinbefore is excepted) no special writ (2) or writs, nor any process specially therein expressing the cause or causes of action, shall, from and after the said first day of November, be sued forth or issued from any court, in order to compel any person or persons to appear thereon in such court; and all proceedings and judgments that shall, from and after the said first day of November, be had on any such writ or process, shall be, and are hereby declared to be void and of no effect. (3) II. And whereas the provisions in the said Acts authorizing plaintiffs in default of appearance of defendants to enter a common appearance or file common bail as therein directed, are not deemed to extend to proceedings by original and other writs, whereupon no capias is issued, and it is expedient to extend the provisions of the said former Acts to 'such proceedings;' Be it further enacted by the authority aforesaid, (1) If a defendant be holden to bail on an affidavit for 17., out of which 67. 10s. have been paid, the Court will not set aside the proceedings under the 51 Geo. III. c. 124. s. 1.: but his remedy, if any, would be under the 43 Geo. III. c. 46., for having been maliciously holden to bail; Spink v. Hitchcock, 1 Moore, 131. (2) A bailable writ is not necessarily a special writ within the 51 Geo. III. c. 124., and therefore a plea stating that plaintiff commenced his action by a bailable writ indorsed for bail for 601., by virtue of which defendant was arrested, and that plaintiff's true cause of No special writ sued forth to compel appearance. Proceedings on such writ or process void. No distringas to issue for default of appearance: defendant served personally. action did not amount to 157., or to any sum for which defendant was liable to be arrested; was held bad on general demurrer for not shewing the writ to be a special writ. Ball v. Swan, 1 Barn. & Ald. 393. (3) The statute 51 Geo. III. c. 124. s. 1. does not avoid the plaintiff's proceedings and judgment by reason of his arresting for a sum exceeding 157., and recovering a less sum than 15.; Spink v. Hitchcock, 7 Taunt. 435. S. C. 1 Moore, 131. N. B. How a writ must be pleaded within this statute, see Ball v. Swan, 1 B. & A. 393. No. XL. 51 Geo. III. c. 124. that in all cases where the plaintiff or plaintiffs shall proceed by original or other writ and summons, or attachment therupon, (1) in any action against any person or persons not having privilege of Parliament, no writ of distringas shall issue for default of appearance, (2) but the defendant or defendants shall be served personally with the summons or attachment, at the foot of which shall be written a notice informing the defendant or defendants of the intent and meaning of such service, to the effect following: Form of notice C. D. [naming the defendant] You are served with this process at the where defendsuit of A. B. [naming the plaintiff or plaintiffs] to the intent that you may appear by your attorney in his Majesty's Court of Westminster, at the return hereof, being the ant cannot be personally served. In what case distringas issued. . at Day of in order to your defence in this action: And take notice, that in default of your appearance, the said A. B. will cause an appearance to be entered for you, and proceed thereon as if you had yourself appeared by your attorney.” But in case it shall be made appear to the satisfaction of the Court, or, in the vacation, of any Judge of the Court, from which such process shall issue, or into which the same shall be returnable, that the defendant or defendants could not be personally served with such summons or attachment, and that such process had been duly executed at the dwelling-house or place of abode of such defendant or defendants, that then it shall and may be lawful for the plaintiff or plaintiffs by leave of the court (3) or order of such judge as aforesaid, to sue out a writ of distringas to compel the appearance of such defendant or defendants; and that at the time of the execution of such writ of distringas there shall be served on the defendant or defendants by the officer executing such writ, if he, she, or they can then be met with; and if he, she, or they cannot then be met with, there shall be left at his, her, or their dwelling (1) Q. Whether the Act extends to replevin? vide Topping v. Fuge, 5 Taunt. 771. (2) In Moore v. Taylor, 5 Taunt. 71, the Court of Common Pleas were clear that this Act did not extend to Counties Palatine, and threw out doubts that it did not even extend to the Court of Exchequer; but by a note of the reporter it appears, that that court has adopted the opposite construction.-I cannot discover on what ground the construction of the Act, as having a limited operation, is founded, the words being perfectly general; and, from my own observation and experience, I am satisfied that there is no subject to which the provisions of the Act could be applied with more beneficial effect, than the execution of process upon writs of justicies in counties palatine. Where a defendant is abroad, a plaintiff may still (since the 51 Geo. III. c. 124.) issue a distringas on service of the venire facias for the purpose of compelling his appearance thereby, as he might have done before that Act; but not for the purpose of enabling the plaintiff to enter an appearance for him, so that he may proceed thereon to final judgment, as if the defendant himself had appeared; Nicholson v. Bownass, 3 Price, 263. S. P. Dwerryhouse v. Graham, 3 Price, 263. (3) This provision does not apply to a case where the defendant has been actually served; as in that case the plaintiff may proceed and enter an appearance; Anon. 1 Marshall, 268 (n). The affidavit for obtaining a distringas must state a belief, that the defendant has absconded, with the grounds of such belief; Down v. Crewe, 1 Marshall, 267; and leave to issue a distringas will not be granted upon affidavit that the defendant was out of the kingdom, and therefore could not be served with process; Jordan v. Bell, 1 Marshall, 292. The statute 43 George III. c. 53, which applies to Ireland the general provisions of stat. 12 Geo. I. c. 29. supra, provides, that wherever it appears to the Court out of which process issues that all due diligence has been used to have the process of the Court personally served, yet, that under the special circumstances of the case appearing to the Court by affidavit that it was impossible to procure personal service, it should be lawful for the Court to substitute such other kind of service as to them should seem fit. 2 Gabbett, 200. As the period of the continuance of the present Act is so very short, the subject of it must of course be brought under the consideration of the legislature ; and, I apprehend, that such a general provision as has been last noticed would be very desirable; that it should be extended to all superior Courts, and the case where process could not be served on account of the defendant being abroad, should be expressly included. It might be fairly confided to the justice of the courts to adopt such regulations as would prevent defendants from being injured by a proceeding of which they had not a sufficient opportunity of being apprized. |