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148

New Bills in Parliament : Law of Debtor and Creditor.

genius being refused insertion in the most amount of the costs reasonably incurred in widely circulated publications, and being prosecuting sults : thus lost to the public, merely from his “By affording to creditors a' more summary pertinacity in adhering to forms of expression which, though conveying his ideas

SI remedy on written, and particularly mercantile with perfect precision, were too much in- securities : volved to be intelligible on the cursory “By holding out inducements to debtors to glance of ordinary readers. Like Bentham, make a cession of their property at an early too, he was fond of coining or creating new stage of their difficulties, for the benefit of words fit to express his ideas with precision,

's creditors : combined with brevity; and he has been heard to say, he should never cease to love “By making all kinds of property, which the phrenulogists and their science, if for are subject to the claims of creditors under nothing else, because they have boldly set the bankrupt and insolvent laws, liable to the up an expressive vocabulary of their own. execution of the judgment creditor : . Professor Park was fully sensible that his

SI

« And by the infliction of certain and

“And by the infliction of certain and severe genius and learning were not duly esti

penalties on such debtors as abscond, or remated by his contemporaries in general ; but fond as he was of applause. This cir- | move, conceal, or aliene property, in fraud of cumstance had not the effect of, in the their creditors, after the commencement of slightest degree, souring his temper, or the suit. engendering misanthopic feeling in his “ Such provisions being made for the secubreast. A due mark of respect, however, fri

rity of the creditor, no one shall be arrested was paid to him by one University—that of Gottingen, of which he was elected a Doctor

for debt, unless the plaintiff, or some one on of Laws.

his behalf, shall make oath that a debt to the His merits, as he knew, were duly esti- | amount of 201. is due, and that he believes the mated by the few intimate friends with defendant is about to abscond. whom he associated, and with this he was

“Or unless a judge of one of the superior satisfied; and those who enjoyed the pleasure of his conversation whilst living, look

courts shall make a special order of arrest. back upon his loss with the greater regret, “That the party may be arrested, either as from the remembrance of the enlightened the first step in the cause, or in any subsequent and original views in the science of juris- stage of the cause. prudence, which his remarks never failed to “ But that in all cases of arrest, it shall be present to them.

competent to the party arrested to apply to the Court, or to a Judge, for relief a.”

NEW BILL FOR THE AMENDMENT The following is the title of this bill: For

OF THE LAW OF DEBTOR AND facilitating the Recovery of Debts, the PreCREDITOR.

a It will be observed that the larger part of

the Commissioners' Report is devoted to the This bill is founded on the Fourth Report of consideration of the abolition of Imprisonment the Common Law Commissioners, which we

for Debt, and that this occupies the early part

of the Report. The relief of the debtor seems printed in the Monthly Record, vol. 2. p. 246. to have been the first object of the Commis

The learned Commissioners point out the sioners. They next propose remedial meafollowing remedies for the defective state of sures for the benefit of creditors. The bill re

| verses this order, and is so far an improvement the Law of Debtor and Creditor, and the pre-l in the method of treating the subject; but the sent bill is principally directed to carry their matter, both of Bill and Report-alike in the

powers proposed to be given to, and taken from recommendations into effect :

creditors-is in several respects objectionable. “ By providing cheaper and speedier meáns We shall have abundant opportunity to state for the recovery of such debts as are usually our objections ; for we are told, on the autho

rity of the Lord Chancellor, that the bill will the foundation of arrests :

not pass this sessions, and that it is brought “ By providing that interest shall be reco- forward now only to be discussed. This shews verable on all debts, from the commencement a proper degree of deference to the experience of the action down to the time of execution : 1to see the same course adopted op other oc

and judgment of others; and we shall be glad “ By enabling creditors to recover the full casions.-ED.

evil:

New Bills in Parliament : Law of Debtor and Creditor.

149 vention of Frauds by Debtors, the Relief of 1 porting to be the acceptor, drawer, or maker, Debtors willing to make Cession of their Pro- and that deinand was made upon such accep

tor, drawer, or maker, of the sum due; such perty for the Payment of their Debts, and holder shall after service of process on such abolishing Imprisonment for Debt, except in acceptor, drawer, or maker, be entitled to cases of Praud."

serve a rule on such acceptor, drawer, or

maker, giving him notice that judgment will It recites, that the existing law of Debtor be signed against him for the sum so sworn to and Creditor is defective, in not providing a be due, unless such acceptor, drawer, or maker

shall within ten days give security, to be apmore summary and less expensive mode of re-In

I proved by an officer of the Court in which such covering debts secured by bonds, bills of ex- suit is commenced, for the payment of the debt change, and promissory notes; and in not and costs, in case final judgment shall be given providing adequate means for enabling cre within the said time shew sufficient cause to a

against him, or unless the defendant shall ditors to obtain satisfaction from the property Judge of the Court why judgment should not of their debtors :

be signed against him, and that such judgment

shall be so signed unless the said defendant And that the indirect course of compelling shall either give such security, or shew such satisfaction to the creditor by imprisoning the sufficient cause; and that it shall be incumbent person of the debtor is circuitone in final on the defendant, in shewing cause before the

said Judge, either to admit or deny the draw. cious, and productive of much evil :

ing, accepting, or making of the said bill of And that it is expedient to protect creditors exchange or promissory note. more effectually against frauds committed by debtors in absconding from justice, or in

Discovery of Debtor's Property; ussign.

ment, &c. fraudulently removing or disposing of their property, for the purpose of defeating or de

3. That in case a plaintiff shall siga final

I judgment against & defendant in any Court, laying the just claims of their creditors. and such defendant shall not satisfy such

It is therefore proposed to be enacted as judgment within ten days after the same shall follows:

have been entered up, it shall be lawful for a

commissioner to be appointed by Speedy Judgment on Bonds, Bills, and Notes. upon the application of the plaintiff, to direct

such defendant, if in custody, to be brought 1. That if the obligee of a bond for payment | before him, or if not in custody, to summon of money shall after suit commenced in any of the defendant to appear before him at such the Superior Courts, show by affidavit the due time and place as the said commissioner shall execution of such bond, and that the sumn se-appoint, for the purpose of being examined cured thereby, or any part thereof, is due to touching his property; and if the defendant him, and that demand was made upon the ob- being so summoned shall not attend before the ligor for the payment of the sum so due, such said commissioner at the time and place apobligee shall after service of process on such pointed, not having been prevented by any obligor, be entitled to serve a rule on such lawful impediment then and there made known obligor, giving notice that judgment will be to the said commissioner and allowed by him, signed against him for the sum sworn to be it shall be lawful for the said commissioner hy due, unless the defendant shall within ten days warrant under his hand and seal to authorize give security, to be approved of by an officer and direct any person or persons therein named of the Court in which such suit is commenced, for that purpose, to apprehend such defendant for the payment of the debt and costs, in case wheresoever he may be found, and to bring the plaintiff shall obtain final judgment, or un- him before the said commissioner to be exaless the defendant shall within that time shew mined as aforesaid ; and upon the appearance sufficient cause to a Judge of that Court why of any defendant so summoned or brought judgment should not be signed against him, before such commissioner, the said commis and that judgment shall be so signed unless the sioner shall examine the defendant on oath as defendant shall either give such security or to his property, whether real or personal, shew such sufficient cause ; and that it shall whereof he is seised or possessed, or to which be incumbent on the obligor, in shewing cause he is in anywise entitled ; and if the said debefore the said Judge, either to admit or deny fendant shall refuse to be sworn, or shall rethe execution of the bond.

fuse to answer any questions put to him by 2. That if the holder of a bill of exchange such commissioner relating to his prope y, it or promissory note shall, after suit commenced shall be lawful for the said commissio er by in any of the Superior Courts, make affidavit warrant under his hand and seal to commit that the sum specified in such bill or note, or him to prison, there to remain without bail any part thereof, is due from the drawer, ac- l until he shall submit himself to the said comceptor, or maker of such bill of exchange or missioner to be sworn, and full answers make promissory note, and that the bill or note was to his satisfaction to such ques ions as shall be drawn, made, or accepted by the person pur- put to him.

150

New Bills in Parliament: Law of Debtor and Creditor. 4. That if such defendant cannot be per-| execution is now by law subject : Provided sonally served with a summons, leaving the nevertheless, that such party suing out execusummons at his dwelling-house or last place of tion, and to whom such delivery of any copyabode, and serving a copy of such summons hold or customary lands shall be so made, on the solicitor or attorney employed on his shall be liable, and is hereby required to make, behalf in the cause in which judgment was do, perform, and render to the lord of the signed, or if such solicitor or attorney cannot manor or other person entitled, all such and be found, service of a copy of such summons the like payments and services as the tenant left at his dwelling-house or last place of abode against whom such execution shall be issued shall be deemed sufficient service on the said would have been bound to pay, render, do, defendant.

and perform ; and that the party so suing out 5. That the said commissioner shall, after such execution, and to whom any such copysuch examination, or proof of such service of hold or customary lands shall have been so summons as aforesaid, by deed assign to the delivered, shall be entitled to hold the same plaintiff, his executors, administrators, or as- until the amount of such payment, and the signs, all the lands and tenements, goods and value of such services, as well as the debt, chattels, and debts, credits, specialties, and shall have been levied. sums of money of the said defendant, and all 7. That where by reason of any existing other property, real or personal, of the said lease or other incumbrance, such sheriff or other debtor, or such part thereof as shall be susti- officer, to whom any such writ or process shall cient to discharge the judgment of the said be so directed, cannot do, make and deliver plaintiff ; and such assignment of the lands of execution unto the party in that behalf suing, the said defendant shall be sufficient to pass of such lands, tenements, rectories, tithes, any lands, tenements, or hereditaments where- rents, and hereditaments, such sheriff or other of the defendant shall be seised in tail, in pos- officer shall proceed to inquire of what estate session, reversion, or remainder; and every and to what beneficial interest in such lands, such assignment shall be good against the said tenements, rectories, tithes, rents, and heredefendant and the issue of his body, and ditaments, the party against whom such exagainst all persons claiining under him after ecution shall be issued, was seised or benefi. such judgment, and against all persons whom cially entitled at the time of such execution the defendant by fine, common recovery, or sued, and shall make return thereof to the any other means might cut off or debar from Court from which such execution was so sued; any remainder, reversion, or other interest in, and that it shall be lawful to and for such to, or out of any of the said lands, tenements, Court, on the petition of such judgment creand hereditaments; and the assignment of the ditor, to order and direct the sale of such esdebts due to the defendant shall vest the pro-tate or interest in such lands, tenements, recperty, right, and interest in such debts in the tories, tithes, rents and hereditaments as such said plaintiff'; and after such assignment and party against whom such judgment shall have notice given to the debtor, neither the defend- been obtained shall be seized of or beneficially ant nor any person claiming through or under entitled to, and to direct the payment of the him shall have power to recover the same, nor proceeds, or of so much thereof as shall be to make any release or discharge thereof, nei-sufficient to satisfy such judgment, to the party ther shall the same be attached as a debt of who has obtained the same, and that thereupon the defendant by any person, according to the such sheriff or other officer shall make sale of, custom of the city of London or otherwise, but assign and convey the same; and that such such plaintiff shall have like remedy to recover sale so made shall be good and effectual against the same in his own name, in like manner as such party against whoin such judgment shall the defendant limself might have done before have been obtained, and all persons whatsoever the assignment.

| claiming by, through, or from him. 6. That it shall be lawful for every sheriff 8. That if any person against whom any or other officer to whom any writ or precept judgment shall have been obtained shall have shall be directed at the suit of any person or any government stock, funds or annuities, or persons of, for, and upon any judgment, sta- any of the stocks of any public company in tute or recognizance hereafter to be made or England, standing in his name in his own right, had, to do, make and deliver execution unto it shall be lawful for a Judge of the Court in the party in that behalf suing, of all such lands, which such judgment shall have been obtained, tenements, rectories, tithes, rents and heredi. on the petition of any judgment creditor, to taments, whether the same be freehold, copy-order all persons whose act or consent is hold, or of customary tenure, whereof such thereto necessary, to transfer the sauce, or so person against whom such execution shall be much thereof as shall be sufficient to satisfy so issued shall be seised or possessed, or such judgment, into the name of such judgwhereof any other person or persons shall be ment creditor, and to pay all dividends upon seised or possessed in trust for him against the same to such judgment creditor ; and all whom execution is so sued at the time of the persons whose act is necessary as aforesaid, said execution sued, and that the same shall be are hereby indemnified from all things done or held and enjoyed subject to such the like pro- permitted in pursuance of such order. visions to which one moiety of the lands, tene- 9. That by virtue of any writ of fieri facias, ments, rectories, tithes, rents, and heredita- every sheriff or other officer having the execuments of any party against whom any such tion thereof, shall and may seize and take all

New Bills in Parliament. Law of Debtor and Creditor,

151

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obligations and securities of the judgment place of abode, or to or for his, her, or their debtor, by which any money shall be payable attorney or agent last employed in any action, to or secured to him, and shall and may at the suit, cause, or causes against the said petitioner, request of the plaintiff in such suit, assign the in case any such creditor or creditors, his, her, same to him by indorsement made thereon or their executors or administrators cannot be and by delivery thereof to such plaintiff, and met with, but not otherwise, before any such that such plaintiff shall be entitled to hold the petition shall be presented and received, a same as security or securities for whatever sum notice in writing, signed with the proper name shall be due to him on such judgment, and to or mark of every such petitioner or petitioners, sue in his own name as assignee thereof for the importing therein that such petitioner or petirecovery of the sum or sums secured thereby | tioners as aforesaid doth or do intend to peand due thereon, or so much thercof as will tition the Court; and an aslidavit of the due satisfy the said judgment; and that the pay- service of every such notice shall be delivered ment to such judgment creditor, by the party with every such petition at the time of preliable on such obligation or security, to the senting thereof which any petition shall be amount of the debt due on such judginent, or addressed, and if such Court shall thereupon the recovery and levying executiou to that be satisfied of the regularity of every such amount against the party so liable, shall dis- | notice, such petition shall be received and charge him to that extent from his liability to | filed. the judgment debtor on any such obligation or Seizure of Debtors' Property. security.

11. That it shall be lawful for any person Petition of Debtors.

appointed by the said commissioner under his 10. That any debtor or debtors who shall hand and seal, to break open any house, chamowe debts to the amount of

and ber, shop, warehouse, door, trunk or chest of have assets to the amount of

and any such debtor, where any of his property who shall be willing to satisfy their respective shall be reputed to be, and seize upon the creditors so far as they are able, and shall be property of such debtor. minded to deliver up to his, her, or their credi. 12. That it shall be lawful for the person so tor or creditors, all his, her, or their estate appointed by the

as aforesaid, and effects, for or towards the satisfaction of to break open any house, chamber, shop, such debt or debts, it shall and may be lawful warehouse, door, trunk or chest of such debtor, to and for any such debtor to exhibit a petition where any of the property of such debtor shall to any such commissioner, setting forth in be reputed to be, and seize the same ; pro. every such petition a just and true account of vided such warrant as aforesaid shall have been all the real and personal estate to which he, verified upon oath before she, or they so petitioning, or any person or

and provided persons in trust for him, her, or them, is, was also that the person thereby appointed shall or were entitled to at the time of his, her, or before a Justice of Peace residing in the county their so petitioning, and of all incumbrances where such property shall be reputed to be, or charges (if any there be) affecting any such depose upon oath that he is the person named real or personal estate of the person or persons | in such warrant. so petitioning; and also a just and true account 13. That if in the execution of any warrant of all the real and personal estate which any of seizure so granted by the commissioners as such petitioner, or any person or persons in aforesaid, it shall be necessary to break open trust for him, her, or them, or for his, her, or any house, chamber, shop, warehouse, door, their use, was or were interested in or entitled trunk, or chest of such

in Scotto at the time of his, her, or their petition, land, where any of the property of such either in possession, reversion, remainder or

shall be reputed to be, or to seize and expectancy, to the best of the belief of every get possession of such property, such warrant, such debtor or debtors, and so far as his or after having been verified upon oath as aforetheir respective knowledge extends concern. said, may be backed or indorsed with the name ing the same; and likewise a true account of of a Judge Ordinary or Justice of the Peace in all the debts due by and to the said petitioner; Scotland, who are hereby required within their and likewise a just and true account of all se respective jurisdictions to back or indorse the curities wherein any part of the estates of any same, and such warrant, so indorsed, shall be such debtor or debtors consists, and of all the sufficient authority to the person bringing such deeds, evidences and writings, books, bonds, warrant, ånd to all officers of the law of Scotfotes and papers concerning the same or re- land, to execute the same within the county or lating thereto, and the names and places of burgh wherein it is so indorsed, and by virtue abode of the witnesses to all securities, bonds thereof to break open the house, chamber, or notes, and where they are respectively to be shop, warehouse, door, trunk, or chest of such inet with, so far as his, her, or their knowledge

and to seize and take posextends concerning the same; and before any session of such property, to be distributed such petition shall be received by any such under the said commission, or otherwise dealt Court, every such petitioner or petitioners with according to law. shall give or leave, or cause to be given or 14. That in all cases where it shall be made left, unto or for all and every the creditor or to appear to the satisfaction of any Justice of creditors, or his, her, or their executors or Peace, in England or Ireland, that there is administrators, and at his, her, or their usual reason to suspect and believe that property of

the

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New Bills in Parliament : Law of Debtor and Creditor.

is concealed in any | luable consideration, shall be admitted to house, premises or other place not belonging claim, and after the loss or contingency shall to such

such Justice of have happened to prove his debt or demand in Peace is hereby directed and authorised to respect thereof, and receive dividends with the grant a search warrant to the person so deputed other creditors, as if the loss or contingency by the commissioners as aforesaid, and it shall had happened before the filing the petition by be lawful for such person to execute the same such obligor or insurer; and the person effect. in like manner; and such person shall be en-ing any policy of insurance upon ships or titled to the same protection as is allowed by goods with any person as a subscriber or un law in execution of a search warrant for pro derwriter, who shall have filed his petition as perty reputed to be stolen or concealed. aforesaid, shall be entitled to prove any loss

which such debtor shall be liable in respect 1) Proceedings under Petition.

such subscription, although the person 80 e. 15. That such commissioner, after such fecting such policy was not beneficially interpetition shall have been filed as aforesaid, shall ested in such ships or goods, in case the person forthwith cause notice of such petition to be | or persons so interested is not or are not given in the London Gazette, and shall thereby within the United Realm.'' appoint tuo public meetings, for the petitioner 19. That any annuity creditor of any such to be examined, and for the choice of assignees; 1 petitioning debtor, by whatever assurance the and the choice of assignees shall take place at same be secured, and whether there were or not the first of such meetings, the last of which

| any arrears of such annuity due at the time of meetings shall be on the forty-second day from filing the petition, shall be entitled to prove the filing of the said petition.

for the value of such annuity, which value the 16. That at the tico several meetings so ap commissioner shall ascertain, regard being had pointed by the said commissioner as aforesaid, to the original price given for the said annuity, and at every other meeting by him appointed deducting therefrom such diminution in the for proof of debts (whereof and of the purport value thereof as shall have been caused by tho whereof ten days' notice shall have been given lapse of time since the grant thereof, to the date in the London Gazette) every creditor of the of filing the petition. petitioning debtor may prove his debt by his 20. That it shall not be lawful for any perown oath; and all bodies politic and public son entitled to any annuity granted by any companies incorporated, or authorised to sue such petitioning debtor, to sue any person who and bring actions, either by charter or Act of may be collateral surety for the payment of Parliament, may prove by an agent, provided such annuity, until such annuitant shall have such agent shall swear in his deposition that he proved against such debtor for the value of is such agent as aforesaid and that he is au- such annuity and for the payment thereof; thorised to make such proof; provided that and if such surety, after such proof, pay the any creditor may prove by affidavit sworn be- amount proved as aforesaid, he shall be thereby fore a Master in Chancery, ordinary or extra- discharged from all claims in respect of such ordinary, or, if such creditor shall live out of annuity; and if such surety shall not, before England, by affidavit sworn before a magistrate any payment of the said annuity subsequent to where such creditor shall be residing, and the filing the petition shall have become due, attested by a notary-public, British ininister pay the sum so proved as aforesaid, he may be or consul; provided that it shall be lawful for sued for the accruing payments of such an, the commissioner to examine upon oath, by nuity, until such annuitant shall have paid or word of mouth, or by interrogatories in writing, satisfied the amount so proved, with interest every person claiming to prove a debt, or to thereon at the rate of four per centum per require such further proof, and to examine annum, from the time of notice of such proof such other persons in relation thereto as they I and of the amount thereof being given to such shall think fit.

surety; and after such payment or satisfaction, 17. That any person who at the time of filing such surety shall stand in the place of such the petition shall be surety, or liable for any | annuitant in respect of such proof as aforesang debt of the debtor, if he shall have paid the to the amount so paid or satisfied as aforesaid debt, or any part thereof in discharge of the by such surety, and the certificate of the debtor whole debt, although he may have paid the shall be a discharge to him from all claims of same after filing of the petition, if the creditors such annuitant or of such surety in respect of shall have proved the debt, shall be entitled to such annuity; provided that such surety shall stand in the place of such creditor, as to the be entitled to credit in account with such andividends and all other rights which such cre- nuitant for any dividends received by such ditor possessed, or would be entitled to in annuitant before such surety shall have fully respect of such proof; or if the creditor shall paid or satisfied the amount so proved as afore. not have proved, such surety or person liable said. shall be entitled to prove his demand in respect! 21. That if any such petitioning debtor shau of such payment as a debt, not disturbing the before the filing his petition have contracted former dividends, and may receive dividends | any debt payable upon a contingency which with the other creditors.

shall not have happened before the issuing of 18. That the obligee in any bottomry or such commission, the person with whom such respondentia bond, and the assured in any debt has been contracted, may, if he think my policy of assurance made upon good and va apply to the commissioner to set a value upou

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