Proposals for Reformation of Abuses, and Subtilties in Practise against the Law, and in Scandall of it.
THe Writs and Processes ordained by Law, are truly intended for remedies, redress of wrongs, and oppressions.
The Statute of 25 Ed. 3. c. 17. which gave the Capias in debt, detinu, assumpsit, which before that Law was not, by the common Law: For no mans person might be arrested for such Causes, nor taken in Execution, the lands and chattels of the Debtor, were onely lyable to execution.
The Statute intended doubtlesse a good use of the Capias, for a more speedy way to compell payment of debts; and not to be made a stale for wrong and oppression as now it is.
The Statute is abused in this, that men now adayes are by force of the Capias and Latitat Arrested and imprisoned upon great Actions, for pretended great sums of money, when in truth, there is no debt at all due, or any just cause of Action.
And commonly upon great Actions, when little is due, both which are great oppressions, and tend to the ruine of the Person, and family, in dishonour of the law, and scandall of justice: and no remedy by the law for so doing, nor equivalent dammage. Will you vex your brother, that would live in peace by you? Revenge your self upon your Neighbour? Will you ruine him in his estate or good name? Arrest him, right or wrong, this will either bend him to your ends, or break him in defence of himself; countenancing thereby the greatest oppression and injustice by colour of Justice in the use of Writs & Process of law.
The inconvenience that are by Arrests.
1 Such Arrests upon fained actions, or great actions, for small debts puts the party to an incapacity of Baile, whereas if the true cause of the action were known, baile might be procured.
2 It draws present great charges and expences upon the party arrested, to the undoing of the party, and support onely of the riotous expences of under Sheriffs, Bailiffes, Serjeants, and their adherents, who live upon the spoile, and ruine of other men, and to the dishonour of God.
3 It exposeth the party Arrested to base and vile usage.
4 It impoverisheth the prisoner, and disables him to pay.
5 It deprives the party Arrested of the means of livelihood, and use of his Trade or Art to live by, for the support of himself, his relations, family, Wife and Children, and payment of his debts.
6 The words of the Writ of Capias, are but ad respond [...]ndum, and the Writ of Debt is but debet ut dicit: In the first place, the party Arrested is undone by imprisonment, before he comes to Answer; and in the other case, upon a supposall, before it be known, whether a debtor or no debtor.
7 There is great danger by Arrests, manslaughter often happening by the violent assault of the Sheriffs Bailiffs, and Serjeants in their Arrests.
8 Imprisonment pay no debts, the Keepers and Jailours of prisons devoure all by excessive fees.
9 Imprisonment destroys industry, corrupts manners, and nourisheth idlenesse.
10 By imprisonment the Common-wealth suffers dammage, men in prison being buried alive, whose abilities of minde and bodies might be serviceable to the publike, in times both of Peace and War, if at liberty.
Added to these Reasons, the excessive charge incident to these Arrests, the prisoner being kept at the Bailiffs house, charges run upon him ten or twenty shillings a day and night, for Chamber-rent and expences, which they draw upon the prisoner without mercy. And if the prisoner be carried to New-gate for want of means to keep himself at the Bailiffs or Serjeants house) so long as the prisoner lies there, the Creditor is not bound to Declare. And if not able to remove himself by Habeas Corpus, which is very chargable to doe, the very Writ of Habeas Corpus, being 11s 4d. or thereabout, and nigh 4l. more according to the number of the Actions he lies under: [Page 3]And if not able to remove himself, he lies there a prisoner at the will of him that Arrested him, or put in Bayle, which is not easily to be done, when the Action is great, and the true cause of the Action not known; And if the prisoner so Arrested be able to remove himself to the Upper Bench, there must he lie three Terms before the pretended Creditor is bound to Declare; and in the mean while, the party Arrested is unhappily undone by such imprisonment, and his Wise and Children; And for this so great oppression, it may be, he may get twenty shillings costs for want of the Declaration, a satisfaction in ludibrium Justitiae, that is, in mockery of Justice. The case is alike if removed by Habeas Corpus into the Fleet
And so if the party be Arrested in any Corporation, and if in the Country, the under Sheriffs will sit two or three Habeas Corpus before they will bring up the prisoner; and untill he hath drawn from the prisoner, considerable summes for the charge of his remove.
And if it so happen the under Sheriff to be amerced, for not returning his Writs, such amerciaments are pro formâ tantum, not one of twenty estreated, or if estreated, easily compounded.
As are the inconveniences by Arrest, the like are if the party prosecutor proceed by Outlary upon the Capias.
1 A Man may be Outlawed upon any pretence of Debt detinue, Assumpsit, or other pretence, whether true or false, and never know of it.
2 The person so Outlawed may die outlawed, which is of ill consequence to such person.
3 The Outlary is chargeable to reverse.
4 The forfeiture by the Outlary goes to the Commonwealth without benefit to the party prosecutor, whose satisfaction the law intends where there is a just debt; but where it is otherwise, the law is abused, and the party sued oppressed.
5 The parties Outlawed are without any remedy against the prosecutor, because he hath the law on his side.
6 When mens estates come to be seised on in cases of Outlary, the under Sheriffs Bailiffes and their followers lick their fingers, and by undervaluing of the Goods and Chattels of the pretended Debtor, he, his Wife and Children are undone, havock being made of the estate.
7 The freehold is liable to seisure upon the Outlawry returned, which if seised, cannot be reversed, but by pleading, which is very chargeable to doe.
8 The party Outlawed is liable to be sued, but disabled to sue for his debts or for his own right.
When therefore these prosecutions by Arrest of the Body, or by exigent shall be upon fained, fraudulent and false ground, how great is the wrongs, oppressions, and injustice: And no remedie or dammages equivalent because done by Process of the Law.
Remedies proposed for redresse of the Inconveniences aforesaid.
1 THat in all cases of Debt, detinue, Assumpsits, and the like, there be no arrest, but a Summons, as before the said Statute of 25. E. 3. c. 17. And such Summons to be served by the party prosecutor, either upon the party debtor, or left at his place of dwelling, as is the Subpena; and upon Affidavit made of such service, the Sheriff to make his return.
This will prevent the fraud of under-Sheriffs and Bailiffs, by whose shifts and delays, in serving and execution of Process, the people are abused and wronged and Justice delayed.
This will avoid the extraordinary charge that men are put unto by under-Sheriffs, their Bailiffs, and Officers, to get their Process and Writs served, especially when it comes to execution.
And for avoiding of feigned Actions, or Arrests upon greater Actions, where the Debt or duty is but small.
IT is proposed that all contracts hereafter made, be by specialty, if they exceed forty shillings, which are properly triable in the County Court or Court Baron, and ought not to be from thence removed, as cunningly they are, by the Atturnies, to the great vexation of the people, and abuse of the law, and the Atturnies that doe this not discountenanced.
This course of giving of specialty upon Contracts, will greatly prevent that sin of Perjury, too commonly practised: It was the observation of the Lord Chancellor Egerton, that a contract by parole, was a contract by perjury, and in anno 40, Elizabeth ter. Tr. he openly declared in Court, that he would give no relief, to him that claimed a Lease by Parol. And in 1. Jacobi Regis, that it were good for the Commonwealth, that no promises by parol, proved by witness, were allowed, considering the plenty of witnesses now adayes, that were Testes Diabolici, qui magis fame quam fama moventer.
And Judge, Doddridges opinion in Slades case, Cook 4. part fol: 92: is, that the action upon the case is a feigned action, and devised in deceit of the law:
1 A Debt created by specialty, will prevent multiplicity of sutes, which are introduced by parole Contracts, they being ten for one:
2 The action upon a specialtie, is a certain action, the action upon the case upon paroll contract doubtfull and uncertain:
3 The wager of law is taken from the party for his defence, in the action upon the case, which in the action of debt is saved to him, where the debt is not by specialty:
4 The action upon the case, is an action of surprise, mens words being often wrested beyond the true intent of the party, and there a home-swearer carries the cause:
5 In contracts by specialty there is apparent truth in contracts by paroll, truth is obscure, and the discovery dangerous and dubious.
6 Contracts by specialty have a certainty in them, so have not contracts by paroll.
7 Contracts by specialty are more certain and safe for a Jury to ground their Verdict upon than contracts by paroll.
8 In contracts by paroll where perjury is committed, commonly the witnesses produced are never more to be heard of, and the party thereby injured, left without remedy by such swearing, against such swearer, it is otherwise in cases of contracts by specialty, for therein there is more assurance of remedie, than in contracts by words, such persons being more responsable to Justice in case of miscarriage.
Excepted alwayes out of these Proposals, the Contracts and dealings between Merchant and Merchants, and of their Factours, Servants and Agents, as by the Statute of anno 21. King James is provided.