Debtors (Ireland) Act 1840

JurisdictionUK Non-devolved
Citation1840 c. 105
Year1840
Anno Regni VICTORI, Britanniarum Regin,Tertio & Quarto. 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 the further Amendment of the Law and the better Advancement of Justice inIreland .

(3 & 4 Vict.) C A P. CV.

[10th August 1840]

'WHEREAS the present Power of Arrest upon Mesne Process inIreland is unnecessarily extensive and severe, and ought to be relaxed: And whereas it is expedient that certain Provisions of Acts of Parliament in force in England in relation to Actions in Courts of Common Law, and to Process and Proceedings therein, should be extended to Ireland: ' Be it therefore enacted by the Queen's most ExcellentMajesty, 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 Time appointed for the Commencement of this Act no Person shall be arrested upon Mesne Process in any Civil Action in any Inferior Court whatsoever, or (except in the Cases and in the Manner herein-after provided for) in any Superior Court.

S-II A Judge of a Superior Court may order Defendant to be arrested in certain Cases.

II A Judge of a Superior Court may order Defendant to be arrested in certain Cases.

II. And be it enacted, That if a Plaintiff in any Action in any of Her Majesty's Superior Courts of Law atDublin , 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 Ireland unless he or they be forthwith arrested or held to Special Bail, it shall be lawful for such Judge, by a special Order, to direct that such Defendant or Defendants so about to quit Ireland shall be held to Bail for such Sum as such Judge shall think fit, not exceeding the Amount of the Debt or Damages so sworn to as aforesaid; 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 have marked at the Foot thereof or endorsed thereon the Sum for which such Defendant shall be so ordered to be arrested or held to Bail, and the said Writ shall have subscribed at the Foot thereof the Memorandum and Warning, and shall have endorsed thereon the several Endorsements in the Form in the Schedule (A.) to this Act annexed, and shall bear Date on the Day on which the same shall be issued, and be returnable into the Court out of which such Writ shall have issued, according to the Practice of such Court.

S-III Sheriff may proceed to arrest Defendant.

III Sheriff may proceed to arrest Defendant.

III. And be it enacted, That the Sheriff or other Officer to whom any such Writ of Capias shall be directed shall, before the Expiration of the Return of the said Writ, within One Calendar Month after the Date thereof, including the Day of such Date, but not afterwards, proceed to arrest the Defendant thereupon; and such Defendantwhen so arrested shall remain in Custody until he shall have given a Bail Bond to the Sheriff, or shall have made Deposit of the Sum endorsed on such Writ of Capias, together with Ten Pounds for Costs, according to the Practice of the said Superior Courts; and all subsequent Proceedings as to the putting in and perfecting Special Bail, or of making Deposit and Payment of Money into Court instead of putting in and perfecting Special Bail, shall be according to the like Practice of the said Superior Courts, or as near thereto as the Circumstances of the Case will admit.

S-IV Order may be made at any Time before final Judgment.

IV Order may be made at any Time before final Judgment.

IV. And be it enacted, That any such Special Order may be made and the Defendant arrested in pursuance thereof at any Time after the Commencement of such Action, and before final Judgment shall have been obtained therein.

S-V Defendant may apply for his Discharge forthwith; and the Judge may discharge or not.

V Defendant may apply for his Discharge forthwith; and the Judge may discharge or not.

V. And be it enacted, That it shall be lawful for any Person arrested upon any such Writ of Capias to apply at any Time after such Arrest to a Judge of One of the Superior Courts atDublin or to the Court in which the Action shall have been commenced, for an Order or Rule on the Plaintiff in such Action to show Cause why the Person arrested should not be discharged out of Custody; and that it shall be lawful for such Judge or Court to make absolute or discharge or refuse such Order or Rule, and to direct the Costs of the Application to be paid by either Party, or to make such other Order therein as to such Judgeor Court shall seem fit; provided that any such Order made by a Judge may be discharged or varied by the Court, on Application made thereto by either Party dissatisfied with such Order.

S-VI Prisoners in Custody on Mesne Process who have not filed Petitions under Insolvent Acts entitled to be discharged.

VI Prisoners in Custody on Mesne Process who have not filed Petitions under Insolvent Acts entitled to be discharged.

VI. And be it enacted, That every Prisoner who at the Time appointed for the Commencement of this Act shall be in Custody upon Mesne Process for any Debt or Demand, and shall not have filed a Petition to be discharged under the Laws in force for the Relief of Insolvent Debtors, may apply to the Court out of which such Process was issued, or any Judge thereof, for an Order or Rule on the Plaintiff in such Process to show Cause why the Prisoner so in Custody should not be discharged out of Custody; and it shall be lawful for such Court or Judge to make absolute or discharge or refuse such Order or Rule, and to direct the Costs of the Application to be paid by either Party, or to make such other Order therein as to such Judge or Court shall seem meet; provided that any such Order made by a Judge may be discharged or varied by the Court on Application made thereto by either Party dissatisfied with such Order; provided also, that every such Prisoner shall be liable to be detained, or after such Discharge to be again arrested, by virtue of any such special Order as aforesaid, at the Suit of the Plaintiff at whose Suit he was previously arrested, or of any other Plaintiff.

S-VII Where Statute of Limitations may be pleaded in bar of Actions, unless Writ, &c issued and continued, such Writ, &c. may be continued by Alias and Pluries.

VII Where Statute of Limitations may be pleaded in bar of Actions, unless Writ, &c issued and continued, such Writ, &c. may be continued by Alias and Pluries.

VII. And in order to prevent the Operation of any Statute of Limitation in bar of the Cause of Action of any Plaintiff in Cases in which such Cause of Action would be barred unless a Writ or Process issued and was continued for that Purpose,' be it enacted, That every Writ or Process may be continued by Alias and Pluries, as the Case may require, if any Defendant therein named may not have been arrested or held to Bail thereunder or served therewith: Provided always, that no First Writ shall be available to prevent the Operation of any Statute whereby the Time for the Commencement of the Action may be limited, unless the Defendant shall be arrested or held to Bail thereunder or served therewith, or Proceeding to or towards Outlawry shall be had thereupon, or unless such Writ, and every Writ (if any) issued in continuation of a preceding Writ, shall be returned Non est inventus, and entered of Record within One Calendar Month after the Expiration of the Return of such Writ or Process, including the Day of such Expiration, and unless every Writ issued in continuation of a preceding Writ shall be issued within One Calendar Month after the Expiration of the preceding Writ, and shall contain a Memorandum endorsed thereon or subscribed thereto specifying the Day of the Date of the First Writ, such Return of Non est inventus to be made in bailable Process (in case such bailable Process shall be ordered to issue as aforesaid) by the Sheriff or other Officer to whom such Writ shall be directed, or his Successor in Office, and in Process not bailable, in case of Non-service thereof, to be made by the Plaintiff or his Attorney suing out the same, and signed by him, and in case such bailable Process shall be so returned Non est inventus, then for such Purpose of preventing the Operation of such Statute of Limitations the same may be continued by Alias and Pluries Writ not serviceable, to be continued and returned in manner aforesaid.

S-VIII Manner of making a Debtor a Bankrupt.

VIII Manner of making a Debtor a Bankrupt.

VIII. And be it enacted, That if any single Creditor, or any Two or more Creditors being Partners, whose Debts 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, with the proper Officer in the Office of the Lord Chancellor's Secretary of Bankrupts inIreland , an Affidavit or Affidavits, to be sworn before a Master Ordinary or Extraordinary in Chancery, that such Debt or Debts is or are justly due to him or them respectively, and that such Debtor as he or...

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