To the high bailiff and the other bailiffs of the said court, and to all constables and peace officers within the jurisdiction of the said court, and to the governor or keeper of in the Whereas [&c., as in the last form to †, and then thus]: and whereas it was duly proved upon oath at the last-mentioned court, that the said was personally served with the said summons; and whereas the said did not attend, as required by such summons, or allege any sufficient excuse for not so attending, and thereupon it was ordered by the judge of the said court, that the said should be committed for the term of days, to the according to the form of the statute in such case made and provided, or until he should be thence sooner discharged by due course of law: These are therefore to require you, the said high bailiff, bailiffs, and others, to take the said and to deliver him to the governor [or keeper, &c.] of and you, the said governor [or keeper, &c.] are hereby required to receive the said defendant into your custody, and him safely to keep in the said for the term of days from the arrest under this warrant, or until he shall be sooner discharged by due course of law. For which this shall be your sufficient warrant. Given under the seal of this court, this 185 . day of To the high bailiff and the other bailiffs of the said court, and to all constables and peace officers within the jurisdiction of the said court, and to the said governor or keeper of Whereas [&c., as in the last form but one to †, and then thus]; and whereas the said having duly appeared at the said court pursuant to the said summons, was examined touching the not having paid to the said the sum of in the days aforesaid; and whereas it appeared upon such examination to the satisfaction of the judge of the said court, that [here insert the particular ground of commitment], and thereupon it was ordered by the said judge that the said should be committed for the term of to the according to the form of the statute in such case made and provided, or until he should be thence sooner discharged by due course of law: These are therefore to require you, the said high bailiff, bailiffs, and others, to take the said [or keeper, &c.] of ; and you the hereby required to receive the said to keep in the for the term of warrant, or until he shall be duly discharged which this shall be your sufficient warrant. Given under the seal of the court, this and to deliver him to the governor said governor [or keeper, &c.] are into your custody, and him safely days from the arrest under this by due course of law. For day of 186 (Seal.) Clerk of the court. Upon the application of the said creditor and on reading the affidavit of showing the due service of the order for paying the sum of £ by the said debtor made on summons pursuant to the Acts 8 & 9 Vict. c. 127, and 10 & 11 Vict. c. 102, and the affidavit of the said creditor, showing that the same have not been paid pursuant to the said order: It is ordered, that the said debtor herein shall on the of the clock in the day of at day noon show cause before the court for relief of insolvent debtors, in the court of William John Law, Esquire, commissioner, at the court house in Portugal Street, Lincoln's Inn Fields, in the county of Middlesex, why he, the said debtor, should not be committed to prison by reason of the premises pursuant to the provisions of the said act. By the court. (Signed) Judge. ABSCONDING DEBTORS ARREST ACT, 1851. 14 & 15 VICT. CAP. 52. An Act to facilitate the more speedy Arrest of absconding [1st August, 1851.] Debtors. WHEREAS the laws now in force for the arrest of debtors absconding from England are insufficient and inadequate for that purpose, by reason of the delay which is occasioned in obtaining the necessary process; and whereas frauds are perpetrated upon creditors residing at a distance from London by debtors embarking for distant countries from various towns and seaports in England; and whereas it is expedient to provide a more expeditious and efficacious mode of obtaining process for the arrest of debtors about to quit England in all cases where such debtors are now liable by law to be arrested: 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, as follows: I. That from and after the passing of this act it shall be lawful for any commissioner of the court of bankruptcy acting for any district in the country, or the judge of any district county court, except the county court judges acting in the counties of Middlesex and Surrey, on application by or on behalf of any creditor, upon due proof by affidavit, intituled in one of her Majesty's superior courts of common law, of the creditor applying, or of some other person, or by solemn affirmation in cases in which solemn affirmation is allowed by law, to the satisfaction of such commissioner or judge, that a debt of twenty pounds or upwards is owing to such creditor, and is then payable from the person or persons against whom such application shall be made, and that there is probable cause for believing that such debtor or debtors, unless he or they be forthwith apprehended, is or are about to quit England with intent to avoid or delay the said creditor, or with intent to remain out of the jurisdiction of the courts of law in England so long that thereby the said creditor will or may be delayed in the recovery of the said debt, to grant a warrant, such warrant being in the form and endorsed in the manner specified in the schedule (A) to this act annexed, or to the like effect, to the messenger of the said court of bankruptcy, or to the high bailiff of the said county court, whereby the said messenger or high bailiff shall have authority, at any time within seven days after the date of the said warrant, including the day of such date, to arrest the person or persons named in such warrant, and him or them safely keep until he or they shall have given bail to such messenger or high bailiff, or made deposit with him, according to the practice observed in the superior courts of law, or until he shall have paid the debt and costs endorsed on the said warrant, ABSCONDING DEBTORS ARREST Authority to commissioners of bankruptcy and judges of county courts to grant warrants for the arrest of absconding debtors. or be otherwise discharged from arrest under such warrant by due course of See Rule, 277. law, and that such warrant shall bear date the day of the issuing thereof, ante, p. 493. and may be executed in any part of England, and that a copy of such Writ of capias to issue thereupon. Before whom affidavits to be sworn. Warrants to be auxiliary to such writ of capias. Time and place warrant or warrants shall at the time of the arrest be served upon the party arrested: provided always, that every creditor who shall cause such warrant to issue shall forthwith cause to be issued a writ of capias, and also, in cases where no action shall be pending, shall, before the issuing of such writ of capias, cause a writ of summons to be issued out of some one of the superior courts of law against such debtor or debtors, and that upon such capias all mandates and warrants shall issue according to the practice now in use, notwithstanding that the defendant shall have been arrested by virtue of any warrant or warrants granted by such commissioner or judge, and such debtor or debtors shall, if in custody, be served with such writ of capias, within seven days from the date of such warrant, including the day of such date; and thereupon such debtor or debtors shall be considered and deemed to have been arrested by virtue of the said writ of capias, and all proceedings shall be had upon such writ of capias as if the same had been issued prior to the issuing of such warrant, and the arrest made on such writ of capias, and according to the practice now observed in the said superior courts of law. II. The affidavit or affirmation required by this act may be sworn or made before such commissioner or judge, or before any person having authority to administer oaths in any of the courts of law aforesaid. III. The warrant or warrants which shall be issued by virtue of this act shall be auxiliary only to the processes now in use, and shall be wholly void and of none effect whatsoever, as a protection to the person on whose behalf such warrant shall have issued, unless such writ of capias shall be issued and served in manner aforesaid. IV. The person to whom the warrant hereby authorized to be issued shall be directed shall, immediately on the same being executed, endorse a certificate thereupon of the time and place where the debtor was arrested; and the production of such warrant and certificate to the sheriff of the county where such warrants shall have issued, or to the keeper of the gaol of such sheriff's to receive county, shall be a sufficient authority to such sheriff or keeper to detain such debtor or debtors until he or they shall be discharged by due course of and detain such debtor. Persons arrested entitled to dis cases. law. V. It shall be lawful for any person arrested upon any such warrant forthwith before the issuing of the said writ of capias to pay the debt and costs charge in certain which shall be endorsed on such warrant to the said messenger or high bailiff as aforesaid, or to enter into a bail bond to such messenger or high bailiff, with two sufficient sureties, for the amount which shall be endorsed on such warrant, conditioned to put in special bail as required by the said warrant, or to make deposit of the sum endorsed on such warrant, together with ten pounds for costs, and thereupon he shall be entitled to be discharged from custody, and such messenger or high bailiff is hereby authorized to discharge such person accordingly. Effect of writs of capias on previous proceedings. VI. As soon as the person so arrested as aforesaid has been taken into custody, or detained, under the writ of capias herein before mentioned, the force and effect of the said warrant so granted as aforesaid shall immediately cease and determine, and the said sheriff shall hold the said person under or by virtue of the said writ of capias, in like manner as if the said person had been first arrested under and by virtue of the same, or in case the person so arrested shall have made deposit with the said messenger or high bailiff as aforesaid, or entered into such bail bond as aforesaid, then upon delivery to the messenger or high bailiff, respectively, by whom such person was arrested, of the copy of a warrant granted by the sheriff upon such writ of capias as aforesaid, the said messenger or high bailiff shall pay over to such sheriff as aforesaid the said deposit, or assign to the said sheriff such bail bond as aforesaid, and the said sheriff shall then hold the said deposit or bail bond, and shall be entitled to enforce the said bail bond in his own name, or to assign the same in the same manner as if the said person had been first arrested on the said writ of capias, and the said deposit had been made, or bail bond entered into with the said sheriff: provided always, that the said sheriff shall not be in any manner liable or answerable for any default, misbehaviour or miscarriage of the person to whom such warrant was addressed, or of the person or persons making the arrest under and by virtue of the said warrant: provided also, that if no writ of capias be issued and served within seven days from the date of the said warrant, including the day of such date, the person arrested under such warrant shall be entitled to be discharged from custody, or in case the deposit has been made with, or bail bond given to, the said messenger or high bailiff, then the said deposit shall be returned, and the said bail bond given up to be cancelled. VII. Such warrant shall be endorsed with the amount of debt and costs Endorsement on claimed by the plaintiff in such manner as writs of capias are now directed warrant. to be endorsed, and on payment of the amount so endorsed all proceedings shall be stayed, and the person so arrested be discharged from custody, and he shall be at liberty afterwards to tax the costs so endorsed as if he had been arrested under a writ of capias. VIII. It shall be lawful for any person for whose arrest a warrant shall have been granted to make application, either before or after arrest shall have been made by virtue of the said warrant, and before a writ of capias shall have been issued as aforesaid to any commissioner of bankrupt, or county court judge as aforesaid, or to any judge of the said superior courts, or to the court mentioned in the affidavit of debt or warrant for the arrest, for a summons or rule calling upon the creditor who shall have obtained such warrant to show cause why the warrant should not be set aside and vacated, if such application shall be made before arrest, or why the debtor should not be discharged out of custody, if the application should be made after arrest, and that it shall be lawful for such commissioner or judge or court to make absolute or discharge such summons or rule, and direct the costs of the application to be paid by either party, or to make such other order therein as to such commissioner or judge or 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. IX. The officer to whom such warrant shall be directed or addressed as aforesaid shall be subject to the jurisdiction of the court in which the action shall be brought, or of any judge thereof, and shall be responsible to such court or judge, and to the person at whose suit such warrant shall issue, for the due execution of the said warrant, in the same manner exactly as sheriffs are now responsible for the due execution of all writs of capias directed or addressed to them, and shall be entitled to the same protection as sheriffs now are entitled to on executing such writs. X. The costs of and attending the warrant hereby authorized to be issued, and the arrest thereon, shall be deemed to be costs in the cause: provided always, that no such costs shall be allowed to a plaintiff unless the court or the proper officer thereof is satisfied, by affidavit or otherwise, that the plaintiff had good reason to believe that he would probably have failed in causing the defendant to be arrested if he had proceeded in the first instance by application to a judge of one of the superior courts for a writ of capias, without first applying to a judge of a county court or a commissioner of the court of bankruptcy, as the case may be, under the provisions of this act. Persons arrested may apply to a bankrupt, a judge, or the court named in the warrant, for their discharge. commissioner of Officer responsible for the due execution of warrant. Costs of such warrant to be costs in the cause, except as herein provided to the contrary. |