Judgments Act 1838
| Jurisdiction | UK Non-devolved |
| Citation | 1838 c. 110 |
(1 & 2 Vict.) C A P. CX.
[16th August 1838]
'WHEREAS the present Power of Arrest upon Mesne Process is unnecessarily extensive and severe, and ought to be relaxed:' Be it therefore enacted by the Queen'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 Timeappointed 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.
II How Actions to be commenced.
II. And be it enacted, That all personal Actions in Her Majesty's Superior Courts of Law atWestminster shall be commenced by Writ of Summons.
III A Judge of a Superior Court may order Defendant to be arrested in certain Cases.
III. And be it enacted, That if a Plaintiff in any Action in any of Her Majesty's Superior Courts of Law atWestminster , 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 England unless he or they be forthwith apprehended, it shall be lawful for such Judge, by a special Order, to direct that such Defendant or Defendants so about to quit England shall be held to Bail for such Sum as such Judge shall think fit, not exceeding the Amount of the Debt or Damages; 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 be in the Form contained in the Schedule to this Act annexed, and shall bear Date on the Day on which the same shall be issued: Provided always, that the said Writ of Capias and all Writs of Execution to be issued out of the Superior Courts of Law at Westminster into the Counties Palatine of Lancaster and Durham shall be directed to the Chancellor of the County Palatine of Lancaster , or his Deputy there, or to the Chancellor of the County Palatine of Durham , or his Deputy there.
IV Sheriff may proceed to arrest Defendant.
IV. And be it enacted, That the Sheriff or other Officer to whom any such Writ of Capias shall be directed shall, 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 Defendant when so arrested shall remain in Custody until he shall have given a Bail Bond to the Sheriff, or shall have made Depositof the Sum endorsed on such Writ of Capias, together with Ten Pounds for Costs, according to the present 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.
V Order may be made at any Stage of Proceedings before final Judgment.
V. 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; and that a Defendant in Custody upon any such Arrest, and not previously served with a Copy of the Writ of Summons, may be lawfully served therewith.
VI Defendant may apply for his Discharge forthwith.
VI. 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 atWestminster , 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 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 fit; provided that any such Order made by a Judgemay be discharged or varied by the Court, on Application made thereto by either Party dissatisfied with such Order.
VII Prisoners in Custody on Mesne Process who have not filed Petitions under Insolvent Acts entitled to be discharged.
VII. And be it enacted, That every Prisoner who at the Time appointed for the Commencement of this Act shell be in Custody upon Mesne Process for any Debt or Demand, and shall not have filed a Petition to be discharged under the Laws now in force for the Relief of Insolvent Debtors, shall be entitled to his Discharge upon entering a common Appearance to the Action: Provided nevertheless, 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.
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 Debt shall amount to One hundred Pounds or upwards, or any Two Creditors whose Debt 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 compound 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.
IX Warrants of Attorney and Cognovit Actionem to be executed in the Presence of an Attorney on behalf of the Person.
IX. 'And whereas it is expedient that Provision should be made for giving every Person executing a Warrant of Attorney to confess Judgment or a Cognovit Actionem due Information of the Nature and Effect thereof;' be it enacted, That from and after the Time appointed for the Commencement of this Act no Warrant of Attorney to confess Judgment in any personal Action, or Cognovit Actionem, given by any Person, shall be of any Force unless there shall be present some Attorney of One of the Superior Courts on behalf of such Person, expressly named by him and attending at his Request, to inform him of the Nature and Effect of such Warrant or Cognovit, before the same is executed; which Attorney shall subscribe his Name as a Witness to the due Execution thereof, and thereby declare himself to be Attorney for the Person executing the same, and state that...
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