CHAPTER XVIII. BAIL-ARREST UNDER ABSCONDING DEBTORS THE Absconding Debtors Arrest Act, 1851 (14 & 15 Vict. c. 52), provides 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 in law to be arrested. By sect. I it is enacted that 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 201. 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 indorsed in the manner specified in the sched. 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, withan 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 indorsed on the said warrant, or be otherwise discharged from arrest under such warrant by due course of law, and that such warrant shall bear date the day of issuing thereof, and may be executed in any part of England, and that a copy of such 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(1) 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. Form of Warrant to Arrest. (Sched. A.) Whereas, A. B. (the creditor) hath this day proved upon oath [or solemn affirmation, as the case may be] to my satisfaction, that C. D., (the debtor) is indebted to the said A. B. in the sum of £ and that there is probable cause for believing that the said C. D., unless he be forthwith apprehended, is about to quit England with such intent as is mentioned in the Absconding Debtors Arrest Act, 1851. These are to desire and authorize you that you take the said C. D. wheresoever he may be found, and him safely keep until he shall have given you bail or made deposit with you, according to law in an action [on promises, or of debt, or covenant, as the cause of action may be] at the suit of A. B., or until the said C. D. shall have paid the debt and costs indorsed on this warrant, or shall by other lawful means be discharged from your custody. I do further command you to whom this warrant is directed, that on execution hereof you do deliver a copy hereof to the said C. D. And I hereby require the said C. D. to take notice that application will be made forthwith to the Court of Queen's Bench [or Common Pleas, or Exchequer, or Common Pleas at Lancaster, or (') If the defendant has paid the debt, and obtained his discharge, and is then arrested by other creditors, he need not be served with the capias, but it is sufficient to sue it out, Eld v. Vero, 8 Exch. 655. The capias must be issued and served within seven days, if issued on the same materials as the warrant, else the defendant may be discharged; but if a capias is obtained on fresh materials afterwards, it will be valid, Masters v. Johnson, 8 Exch. 63. Pleas at Durham, as the case may be] for a writ of capias to be issued against the said C. D., and a copy of such writ, if obtained, will be served upon the said C. D., if still in custody, within seven days from the date of this warrant, including the day of such date. And I do further command you to whom this warrant is directed, that immediately after the execution hereof, you do certify by indorsement hereon the time and place, when and where you shall have executed the same. Dated the day of This warrant is to be executed within , A.D. days from the date hereof, including the day of such date, and not afterwards. Within seven days from the day of the date of this warrant, including the day of such date, you will be served with a writ of capias, and thereafter you will be considered as arrested by virtue of such writ of capias, and all proceedings will be had upon the said writ of capias as if this warrant had not issued, or you may be discharged forthwith, on depositing in the hands of the officer to whom this warrant is directed the sum of £ and ten pounds for costs, or on payment to such officer of the debt and costs indorsed on this warrant, or on entering into a bail-bond to such officer with two sufficient sureties for the amount indorsed on this warrant. The plaintiff claims £ warrant.) by order of (the party issuing the The affidavit may be sworn before a commissioner of bankruptcy, or judge of the County Court, or any person having authority to administer oaths in the superior court (s. 2.) The warrant is auxiliary only to the processes now in use, and shall be wholly void and of none effect whatsoever as a protection to the person issuing it, unless issued and served as aforesaid: (s. 3.) The person executing the warrant must indorse a certificate thereupon of the time and place where the arrest was made, and the production of this certificate is sufficient authority to the sheriff of the county where the warrant issued, or keeper of the county gaol, to detain the debtor: (s. 4.) The person executing the warrant is responsible to the court in which the action shall be brought, or a judge thereof, in the same manner as sheriffs now are, and is entitled to the same protection: (s. 9.) The person arrested may, before the issuing of the writ of capias, pay the debt and costs indorsed to the messenger or bailiff, or enter into a bail-bond to him, with two sureties, for the amount indorsed, conditioned to put in special bail, as required by the said warrant, or to make deposit of the sum indorsed, together with ten pounds for costs, and thereupon he shall be entitled to be discharged from custody: (s. 5.) Proceedings after arrest.]-As soon as the person so arrested as aforesaid has been taken into custody, or detained under the writ of capias hereinbefore 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 a copy of the 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 a 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: (s. 6.) Staying proceedings and applying for discharge.]—Such (1) See Eld v. Vero, 8 Exch. 655, ante, p. 845. warrant shall be indorsed with the amount of debt and costs claimed by the plaintiff, in such manner as writs of capias are now directed to be indorsed, and, on payment of the amount so indorsed, 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 indorsed, as if he had been arrested under a writ of capias: (s. 7.) Also the person against whom a warrant has been granted may, either before or after arrest and before a capias has issued, apply to the commissioner or County Court judge, or a judge of the superior court, or the court mentioned in the affidavit, "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 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, 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 :" (s. 8.) Costs and fees.]-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: (s. 10.) The costs of the writs of capias and summons shall be the same as if this act had not passed: (s. 11.) The fees following shall be paid to the parties named, and no other fees shall be allowed or taken in respect of the warrant: (s. 11.) To the attorney for preparing the affidavit of debt £ s. d. 0 10 0 |