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 securities : "By holding out inducements to debtors to make a cession of their property at an early stage of their difficulties, for the benefit of creditors: "By affording to creditors a more summary pertinacity in adhering to forms of expres-remedy on written, and particularly mercantile sion which, though conveying his ideas with perfect precision, were too much involved to be intelligible on the cursory glance of ordinary readers. Like Bentham, too, he was fond of coining or creating new words fit to express his ideas with precision, combined with brevity; and he has been heard to say, he should never cease to love the phrenologists and their science, if for nothing else, because they have boldly set up an expressive vocabulary of their own. Professor Park was fully sensible that his genius and learning were not duly estimated by his contemporaries in general; but fond as he was of applause, this circumstance had not the effect of, in the slightest degree, souring his temper, or engendering misanthopic feeling in his breast. A due mark of respect, however, was paid to him by one University—that of Gottingen, of which he was elected a Doctor of Laws. "By making all kinds of property, which are subject to the claims of creditors under the bankrupt and insolvent laws, liable to the execution of the judgment creditor: "And by the infliction of certain and severe penalties on such debtors as abscond, or remove, conceal, or aliene property, in fraud of their creditors, after the commencement of the suit. "Such provisions being made for the security of the creditor, no one shall be arrested for debt, unless the plaintiff, or some one on his behalf, shall make oath that a debt to the amount of 20%. is due, and that he believes the defendant is about to abscond. "Or unless a judge of one of the superior courts shall make a special order of arrest. His merits, as he knew, were duly estimated by the few intimate friends with whom he associated, and with this he was satisfied; and those who enjoyed the pleasure of his conversation whilst living, look back his loss with the greater regret, from the remembrance of the enlightened and original views in the science of juris-stage of the cause. prudence, which his remarks never failed to present to them. upon NEW BILL FOR THE AMENDMENT "That the party may be arrested, either as the first step in the cause, or in any subsequent "But that in all cases of arrest, it shall be competent to the party arrested to apply to the Court, or to a Judge, for relief a " The following is the title of this bill :-" For facilitating the Recovery of Debts, the Pre 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 CommisThe 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 reverses this order, and is so far an improvement the Law of Debtor and Creditor, and the pre-in the method of treating the subject; but the sent bill is principally directed to carry their recommendations into effect: By providing cheaper and speedier means for the recovery of such debts as are usually the foundation of arrests: matter, both of Bill and Report-alike in the powers proposed to be given to, and taken from creditors is in several respects objectionable. We shall have abundant opportunity to state our objections; for we are told, on the authority of the Lord Chancellor, that the bill will 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 of the action down to the time of execution: By enabling creditors to recover the full a proper degree of deference to the experience and judgment of others; and we shall be glad to see the same course adopted on other occasions.-ED. New Bills in Parliament: Law of Debtor and Creditor. vention of Frauds by Debtors, the Relief of Debtors willing to make Cession of their Property for the Payment of their Debts, and abolishing Imprisonment for Debt, except in cases of Fraud." 149 porting to be the acceptor, drawer, or maker, and that demand was made upon such accep tor, drawer, or maker, of the sum due; such holder shall after service of process on such acceptor, drawer, or maker, be entitled to serve a rule on such acceptor, drawer, or maker, giving him notice that judgment will be signed against him for the sum so sworn to be due, unless such acceptor, drawer, or maker shall within ten days give security, to be approved by an officer of the Court in which such It recites, that the existing law of Debtor and Creditor is defective, in not providing a more summary and less expensive mode of recovering debts secured by bonds, bills of ex-suit is commenced, for the payment of the debt change, and promissory notes; and in not providing adequate means for enabling creditors to obtain satisfaction from the property of their debtors: And that the indirect course of compelling satisfaction to the creditor by imprisoning the person of the debtor, is circuitous, inefficacious, and productive of much evil : and costs, in case final judgment shall be given within the said time shew sufficient cause to a against him, or unless the defendant shall Judge of the Court why judgment should not be signed against him, and that such judgment shall either give such security, or shew such shall be so signed unless the said defendant sufficient cause; and that it shall be incumbent on the defendant, in shewing cause before the said Judge, either to admit or deny the drawing, accepting, or making of the said bill of exchange or promissory note. Discovery of Debtor's Property; assignment, &c. And that it is expedient to protect creditors more effectually against frauds committed by debtors in absconding from justice, or in fraudulently removing or disposing of their property, for the purpose of defeating or de3. That in case a plaintiff shall sign final judgment against a 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: Speedy Judgment on Bonds, Bills, and Notes. have been entered up, it shall be lawful for a commissioner to be appointed by 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 sum 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 by 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 sufficient cause to a Judge of that Court why judgment should not be signed against him, and that judgment shall be so signed unless the defendant shall either give such security or shew such sufficient cause; and that it shall be incumbent on the obligor, in shewing cause before the said Judge, either to admit or deny the execution of the bond. mined as aforesaid; and upon the appearance of any defendant so summoned or brought before such commissioner, the said commis sioner shall examine the defendant on oath as to his property, whether real or personal, whereof he is seised or possessed, or to which he is in anywise entitled; and if the said defendant shall refuse to be sworn, or shall refuse 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-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 such execution, and to whom any such copyhold or customary lands shall have been so delivered, shall be entitled to hold the same until the amount of such payment, and the value of such services, as well as the debt, shall have been levied. 5. That the said commissioner shall, after such examination, or proof of such service of summons as aforesaid, by deed assign to the plaintiff, his executors, administrators, or assigns, all the lands and tenements, goods and chattels, and debts, credits, specialties, and 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 suffi- 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 such assignment shall be good against the said defendant and the issue of his body, and against all persons claiming under him after such judgment, and against all persons whom the defendant by fine, common recovery, or any other means might cut off or debar from any remainder, reversion, or other interest in, to, or out of any of the said lands, tenements, and hereditaments; and the assignment of the debts due to the defendant shall vest the property, right, and interest in such debts in the said plaintiff, and after such assignment and notice given to the debtor, neither the defendant nor any person claiming through or under him shall have power to recover the same, nor to make any release or discharge thereof, neither shall the same be attached as a debt of the defendant by any person, according to the custom of the city of London or otherwise, but such plaintiff shall have like remedy to recover the same in his own name, in like manner as the defendant himself might have done before the assignment. 6. That it shall be lawful for every sheriff or other officer to whom any writ or precept shall be directed at the suit of any person or persons of, for, and upon any judgment, statute or recognizance hereafter to be made or had, to do, make and deliver execution unto the party in that behalf suing, of all such lands, tenements, rectories, tithes, rents and hereditaments, whether the same be freehold, copyhold, or of customary tenure, whereof such person against whom such execution shall be so issued shall be seised or possessed, or whereof any other person or persons shall be seised or possessed in trust for him against whom execution is so sued at the time of the said execution sued, and that the same shall be held and enjoyed subject to such the like provisions to which one moiety of the lands, tenements, rectories, tithes, rents, and hereditaments of any party against whom any such and to what beneficial interest in such lands, tenements, rectories, tithes, rents, and hereditaments, the party against whom such execution shall be issued, was seised or beneficially entitled at the time of such execution sued, and shall make return thereof to the Court from which such execution was so sued; and that it shall be lawful to and for such Court, on the petition of such judgment creditor, to order and direct the sale of such estate or interest in such lands, tenements, rectories, tithes, rents and hereditaments as such party against whom such judgment shall have been obtained shall be seized of or beneficially entitled to, and to direct the payment of the proceeds, or of so much thereof as shall be sufficient to satisfy such judgment, to the party who has obtained the same, and that thereupon such sheriff or other officer shall make sale of, assign and convey the same; and that such sale so made shall be good and effectual against such party against whom such judgment shall have been obtained, and all persons whatsoever claiming by, through, or from him. 8. That if any person against whom any judgment shall have been obtained shall have any government stock, funds or annuities, or any of the stocks of any public company in England, standing in his name in his own right, it shall be lawful for a Judge of the Court in which such judgment shall have been obtained, on the petition of any judgment creditor, to order all persons whose act or consent is thereto necessary, to transfer the same, or so much thereof as shall be sufficient to satisfy such judgment, into the name of such judgment creditor, and to pay all dividends upon the same to such judgment creditor; and all persons whose act is necessary as aforesaid, are hereby indemnified from all things done or permitted in pursuance of such order. 9. That by virtue of any writ of fieri facias, every sheriff or other officer having the execution thereof, shall and may seize and take all New Bills in Parliament: Law of Debtor and Creditor. 151 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 thereof as will tition the Court; and an affidavit 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 liable on such obligation or security, to the amount of the debt due on such judgment, or the recovery and levying execution to that amount against the party so liable, shall discharge him to that extent from his liability to the judgment debtor on any such obligation or security. Petition of Debtors. with every such petition at the time of presenting thereof which any petition shall be addressed, and if such Court shall thereupon be satisfied of the regularity of every such notice, such petition shall be received and filed. Seizure of Debtors' Property. 11. That it shall be lawful for any person appointed by the said commissioner under his hand and seal, to break open any house, chamber, shop, warehouse, door, trunk or chest of any such debtor, where any of his property shall be reputed to be, and seize upon the property of such debtor. 12. That it shall be lawful for the person so appointed by the as aforesaid, to break open any house, chamber, shop, warehouse, door, trunk or chest of such debtor, where any of the property of such debtor shall be reputed to be, and seize the same; provided such warrant as aforesaid shall have been verified upon oath before and provided also that the person thereby appointed shall before a Justice of Peace residing in the county where such property shall be reputed to be, depose upon oath that he is the person named in such warrant. 13. That if in the execution of any warrant of seizure so granted by the commissioners as aforesaid, it shall be necessary to break open any house, chamber, shop, warehouse, door, trunk, or chest of such in Scot 10. That any debtor or debtors who shall owe debts to the amount of and have assets to the amount of and who shall be willing to satisfy their respective creditors so far as they are able, and shall be minded to deliver up to his, her, or their creditor or creditors, all his, her, or their estate and effects, for or towards the satisfaction of such debt or debts, it shall and may be lawful to and for any such debtor to exhibit a petition to any such commissioner, setting forth in every such petition a just and true account of all the real and personal estate to which he, she, or they so petitioning, or any person or persons in trust for him, her, or them, is, was or were entitled to at the time of his, her, or their so petitioning, and of all incumbrances or charges (if any there be) affecting any such real or personal estate of the person or persons so petitioning; and also a just and true account of all the real and personal estate which any such petitioner, or any person or persons in trust for him, her, or them, or for his, her, or their use, was or were interested in or entitled to at the time of his, her, or their petition, 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 such debtor or debtors consists, and of all the deeds, evidences and writings, books, bonds, notes and papers concerning the same or relating thereto, and the names and places of abode of the witnesses to all securities, bonds or notes, and where they are respectively to be met with, so far as his, her, or their knowledge extends concerning the same; and before any such petition shall be received by any such Court, every, such petitioner or petitioners shall give or leave, or cause to be given or left, unto or for all and every the creditor or creditors, or his, her, or their executors or administrators, and at his, her, or their usual land, where any of the property of such same, and such warrant, so indorsed, shall be sufficient authority to the person bringing such warrant, and to all officers of the law of Scotland, to execute the same within the county or burgh wherein it is so indorsed, and by virtue thereof to break open the house, chamber, shop, warehouse, door, trunk, or chest of such and to seize and take possession of such property, to be distributed under the said commission, or otherwise dealt with according to law. 14. That in all cases where it shall be made to appear to the satisfaction of any Justice of Peace, in England or Ireland, that there is reason to suspect and believe that property of 152 the New Bills in Parliament: Law of Debtor and Creditor. is concealed in any house, premises or other place not belonging to such such Justice of Peace is hereby directed and authorised to grant a search warrant to the person so deputed by the commissioners as aforesaid, and it shall be lawful for such person to execute the same in like manner; and such person shall be entitled to the same protection as is allowed by law in execution of a search warrant for property reputed to be stolen or concealed. Proceedings under Petition. 15. That such commissioner, after such petition shall have been filed as aforesaid, shall forthwith cause notice of such petition to be given in the London Gazette, and shall thereby appoint two public meetings, for the petitioner to be examined, and for the choice of assignees; and the choice of assignees shall take place at the first of such meetings, the last of which meetings shall be on the forty-second day from the filing of the said petition. luable consideration, shall be admitted to claim, and after the loss or contingency shall have happened to prove his debt or demand in respect thereof, and receive dividends with the other creditors, as if the loss or contingency had happened before the filing the petition by such obligor or insurer; and the person effecting any policy of insurance upon ships or goods with any person as a subscriber or underwriter, who shall have filed his petition as aforesaid, shall be entitled to prove any loss which such debtor shall be liable in respect.. such subscription, although the person so e fecting such policy was not beneficially interested in such ships or goods, in case the person or persons so interested is not or are not within the United Realm. to the original price given for the said annuity, deducting therefrom such diminution in the value thereof as shall have been caused by the lapse of time since the grant thereof, to the date of filing the petition. 19. That any annuity creditor of any such petitioning debtor, by whatever assurance the same be secured, and whether there were or not any arrears of such annuity due at the time of filing the petition, shall be entitled to prove for the value of such annuity, which value the 16. That at the two several meetings so ap-commissioner shall ascertain, regard being had pointed by the said commissioner as aforesaid, and at every other meeting by him appointed for proof of debts (whereof and of the purport whereof ten days' notice shall have been given in the London Gazette) every creditor of the petitioning debtor may prove his debt by his own outh; and all bodies politic and public companies incorporated, or authorised to sue and bring actions, either by charter or Act of Parliament, may prove by an agent, provided such agent shall swear in his deposition that he is such agent as aforesaid and that he is authorised to make such proof; provided that any creditor may prove by affidavit sworn before a Master in Chancery, ordinary or extra ordinary, or, if such creditor shall live out of England, by affidavit sworn before a magistrate where such creditor shall be residing, and attested by a notary-public, British minister or consul; provided that it shall be lawful for the commissioner to examine upon oath, by word of mouth, or by interrogatories in writing, every person claiming to prove a debt, or to require such further proof, and to examine such other persons in relation thereto as they shall think fit. 17. That any person who at the time of filing the petition shall be surety, or liable for any debt of the debtor, if he shall have paid the debt, or any part thereof in discharge of the whole debt, although he may have paid the same after filing of the petition, if the creditor shall have proved the debt, shall be entitled to stand in the place of such creditor, as to the dividends and all other rights which such creditor possessed, or would be entitled to in respect of such proof; or if the creditor shall not have proved, such surety or person liable shall be entitled to prove his demand in respect of such payment as a debt, not disturbing the former dividends, and may receive dividends with the other creditors. 20. That it shall not be lawful for any person entitled to any annuity granted by any such petitioning debtor, to sue any person who may be collateral surety for the payment of such annuity, until such annuitant shall have proved against such debtor for the value of such annuity and for the payment thereof; and if such surety, after such proof, pay the amount proved as aforesaid, he shall be thereby discharged from all claims in respect of such annuity; and if such surety shall not, before any payment of the said annuity subsequent to the filing the petition shall have become due, pay the sum so proved as aforesaid, he may be sued for the accruing payments of such annuity, until such annuitant shall have paid or satisfied the amount so proved, with interest thereon at the rate of four per centum per annum, from the time of notice of such proof and of the amount thereof being given to such surety; and after such payment or satisfaction, such surety shall stand in the place of such annuitant in respect of such proof as aforesaid to the amount so paid or satisfied as aforesaid by such surety, and the certificate of the debtor shall be a discharge to him from all claims of such annuitant or of such surety in respect of such annuity; provided that such surety shall be entitled to credit in account with such annuitant for any dividends received by such annuitant before such surety shall have fully paid or satisfied the amount so proved as aforesaid. 21. That if any such petitioning debtor shall before the filing his petition have contracted any debt payable upon a contingency which 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 fit, policy of assurance made upon good and va-apply to the commissioner to set a value upon |