value of such excepted articles respectively; and the said schedule shall be subscribed by such prisoner, and shall forthwith be filed in the said court, together with all books, papers, deeds, and writings, in any way relating to such prisoner's estate or effects, in his or her possession, or under his or her custody or control."(a) After the petition and schedule are filed, the court is required to appoint a time and place for hearing the matters of them ; (b) of which notice is to be given to the creditor or creditors at whose suit the prisoner is detained in custody, or his or their attorney or agent, and to the other creditors named in the schedule, and resident within the united [ *392 ] kingdom, whose debt shall amount to the sum of five pounds; and to be inserted in the London Gazette, and also, if the court shall think fit, in the Edinburgh and Dublin Gazettes, or either of them, and in such other newspaper or newspapers as the said court shall direct. (aa) At the time of hearing, the matters of the petition and schedule are to be examined and creditors may oppose the prisoner's discharge; whereupon the hearing may be adjourned, if necessary, and the prisoner shall remain in custody, and be again brought up, and the hearing and examination further proceeded in, as to the court shall seem fit.(b) Affidavits may be received in opposition to the prisoner's discharge, in certain cases mentioned in the act; and interrogatories filed, for the examination or cross examination of the persons making or joining in the same :(c) And the schedule and prisoner's accounts may be referred, if the court shall think fit, upon application made by a creditor, and supported by oath or affidavit, to an officer of the court, or examiner, who may order the attendance of the prisoner.(d) And after such examination made into the matters of the petition and schedule of any such prisoner as thereinbefore directed, it is, as we have seen in a former chapter, (e) declared to be lawful, "at such hearing, or adjourned hearing as aforesaid, for the said court, or the commissioner or justices therein mentioned, upon such prisoner's swearing to the truth of his or her petition and schedule, and executing such warrant of attorney as is thereinafter directed, to adjudge that such prisoner shall be discharged from custody, and entitled to the benefit of that act, at such time as the said court or commissioner, or justices, shall direct, in pursuance of the provisions thereinafter contained in that behalf, as to the several debts and sums of money due, or claimed to be due, at the time of filing such petition, from such prisoner, to the several persons named in his or her schedule as creditors, or claiming to be creditors for the same respectively; or for which such persons shall have given credit to such prisoner, before the time of filing such petition, and which were not then payable; and as to the claims of all other persons, not known to such prisoner at the time of such adjudication, who may be indorsees or holders of any negotiable security set forth in such schedule, so sworn to as aforesaid.”(ƒ) (a) Stat. 7 Geo. IV. c. 57, 8 40; and see stat. 1 Geo. IV. c. 119, 2 6. (b) 7 Geo. IV. c. 57, 8 41. (aa) 7 Geo. IV. c. 57, § 42. (b) Id. 43. (c) Id. 44; and see stat. 1 Geo. IV. c. 119, 22. (d) 7 Geo. IV. c. 57, % 45; and see stat. 1 Geo. IV. 119, % 16. And for the mode of bringing up an insolvent debtor, when in custody, before a commissioner of the insolvent court, on stat. 53 Geo. III. c. 102, see 2 Chit. Rep. 225. (e) Ante, Chap. X. p. 213, 14. (ƒ) 7 Geo. IV. c. 57, 46; and see stat. 1 Geo. IV. c. 119, 16. The discharge of any prisoner, so adjudicated as aforesaid, is declared by the act(g) to extend to "all process issuing from any court, for any contempt of any court, ecclesiastical or civil, for non-payment of money, or of costs or expenses in any court, ecclesiastical or civil; and in such case, the said discharge shall be deemed to extend also to all [*393] costs which such prisoner would be liable to pay, in consequence or by reason of such contempt, or on purging the same: And every discharge so adjudicated as aforesaid, as to any debt or damages of any creditor of such prisoner, shall be deemed to extend also to all costs incurred by such creditor, before the filing of such prisoner's schedule, in any action or suit brought by such creditor against such prisoner, for the recovery of the same: and all persons, as to whose demands for any such costs, money or expenses, any such person shall be so adjudged to be discharged, shall be deemed and taken to be creditors of such prisoner in respect thereof, and entitled to the benefit of all the provisions made for creditors by that act; subject nevertheless to such ascertaining of the amount of the said demands, as may be had by taxation or otherwise, and to such examination thereof as is therein provided, in respect of all claims to a dividend of such insolvent's estate and effects." The discharge of any such prisoner so adjudicated, is also declared by the act, (a) to extend to "any sum and sums of money, which shall be payable by way of annuity, or otherwise, at any future time or times, by virtue of any bond, covenant, or other securities, of any nature whatsoever: And every person and persons who would be a creditor or creditors of such prisoner, for such sum or sums of money, if the same were presently due, shall be admissible as a creditor or creditors of such prisoner, for the value of such sum or sums of money, so payable as aforesaid; which value the said court shall, upon application at any time made in that behalf, ascertain; regard being had to the original price given for such sum or sums of money, deducting therefrom such diminution in the value thereof, as shall have been caused by the lapse of time since the grant thereof to the time of filing such prisoner's petition; and such creditor or creditors shall be entitled in respect of such value, to the benefit of all the provisions made for creditors by that act, without prejudice nevertheless to the respective securities of such creditor or creditors, excepting as respects such prisoner's discharge under that act." Previously to the above act, the grantor of an annuity, who had been discharged out of custody, under the insolvent act, 51 Geo. III. c. 125, was holden to be discharged, both as to his person and property, from all payments of the annuity.(6) But that act did not operate as a discharge of his sureties, or of specific securities.(b) And a person discharged under it was holden to be liable to his surety, for the arrears of an annuity, due after his discharge, which the surety had been obliged to pay.(c) After any person shall have become entitled to the benefit of the statute 7 Geo. IV. c. 57,(d) by any such adjudication as aforesaid, "no writ of fieri facias, or elegit, shall issue on such judgment obtained against such prisoner for any debt or sum of money, with respect to which such person (9) 50, and see stat. 1 Geo. IV. c. 119, 16. (d) 61; and see stat. 1 Geo. IV. c. 119, § 28.] shall have so become entitled, nor in any action upon any new contract or security for payment thereof, except upon the judgment entered up against such prisoner, according to that act: And if any [394] suit or action shall be brought, or any scire facias be issued, against any such person, his or her heirs, executors or administrators, for any such debt or sum of money, or upon any new contract or security for payment thereof, or upon any judgment obtained against or any statute or recognizance acknowledged by, such person for the same, except as aforesaid, it shall and may be lawful for such person, his or her heirs, executors or administrators, to plead generally, that such person was duly discharged according to that act, by the order of adjudication made in that behalf, and that such order remains in force, without pleading any other matter specially :(aa) whereto the plaintiff or plaintiffs shall or may reply generally, and deny the matters pleaded as aforesaid, or reply any other matter or thing which may show the defendant or defendants not to be entitled to the benefit of that act, or that such person was not duly discharged according to the provisions thereof, in the same manner as the plaintiffs might have replied, in case the defendant or defendants had pleaded that act, and a discharge by virtue thereof, specially." Particular modes of proceeding are appointed by the act, in the case of married women, (a) and prisoners of unsound mind:(b) and the act only extends to prisoners within the walls of the prison, except under particular circumstances. (c) It is also provided, that "the benefit of that act shall not be allowed to any prisoners petitioning the said court, who having been arrested in any county or place where he or she had, at or lately before such arrest, his or her usual place of abode, other than in the counties of Middlesex or Surrey, or the city of London, or borough of Southwark, such usual place of abode being distant more than twenty miles from the court-house of the said court, shall be removed by any writ of habeas corpus, sued out on his or her behalf, or by his or her procurement or request, from custody in such county or place, to any other county."(d) And "no person petitioning the said court for relief under that act, who shall have been at any time discharged by virtue of the same, or of any other act for the relief of insolvent debtors, or who shall have been duly declared bankrupt before the commencement of his or her imprisonment, under any commission still remaining in force, and shall not have obtained his or her certificate under such commission, shall be entitled to the benefit of that act, within the space of five years after such discharge, or declaration of bankruptcy, unless three fourths in number and value of the creditors against whom such person shall seek to be discharged, by virtue of that act, shall signify their assent to such discharge, or it shall be made to appear to the satisfaction of the said court, or of a commissioner thereof on his circuit, or such justices as aforesaid, before whom the said person shall be brought, for the hearing of the matters "of his or her petition, that such person has since such former [395] discharge, or declaration of bankruptcy, endeavoured by indus (aa) For the history of the acts for the relief of insolvent debtors, with the mode of pleading them, and the evidence thereon, see Cas. temp. Hardw. 145, 6. (a) Stat. 7 Geo. IV. c. 57, 8 72; and see stat. 3 Geo. IV. c. 123, 12. 5 Barn. & Ald. 759. (b) Stat. 7 Geo. IV. c. 57, 73; and see stat. 1 Geo. IV. c. 119, q 44. (c) 7 Geo. IV. c. 57, 12, and see id. 52. VOL. I.-25 (d) Id. 66. try and frugality to pay all just demands upon him or her, and has incurred no unnecessary expense; and that the debts which such person has incurred, subsequent to such discharge, or declaration of bankruptcy, have been necessarily incurred for the maintenance of such person, or his or her family; or that the insolvency of such person has arisen from misfortune, or from inability to acquire subsistence for himself or herself, and his or her family."(aa) It is also provided, that "the act shall not extend to discharge any prisoner seeking the benefit thereof, with respect to any debt due to his majesty or his successors, or to any debt or penalty with which he or she shall stand charged at the suit of the crown, or of any person, for any offence committed against any act or acts of parliament, relative to any branch of the public revenue; or at the suit of any sheriff or other public officer, upon any bail bond entered into for the appearance of any person prosecuted for any such offence; unless three of the commissioners of his majesty's treasury for the time being shall certify, under their hands, their consent to such discharge."(bb) As it may sometimes happen, that a debt of, or claim upon, or balance due from such prisoner as aforesaid, may be specified in his or her schedule so sworn to as aforesaid, at an amount which is not exactly the actual amount thereof, without any culpable negligence or fraud, or evil intention on the part of such prisoners there is a clause in the act, (cc) that "in such case, the said prisoner shall be entitled to all and every benefit and protection of that act; and the creditor in that behalf shall be entitled to the benefit of all the provisions made for creditors by that act, in respect of the actual amount of such debt, claim, or balance, and neither more nor less than the same, to all intents and purposes, such error in the said schedule notwithstanding." The future effects of an insolvent are liable by this act:(d) And "before any adjudication shall be made in the matter of the petition of any such prisoner, the said court, or commissioner, or justices, shall require such prisoner to execute a warrant of attorney, to authorize the entering up of a judgment against such prisoner, in some one of the superior courts at Westminster, in the name of the assignee or assignees of such prisoner, or of such provisional assignee, if no other assignees shall have been appointed, and shall have accepted such office, for the amount of the debts stated in the schedule of such prisoner, so sworn to as aforesaid, to be due, or claimed to be due, from such prisoner, or so much thereof as shall appear at the time of executing such warrant of attorney to be due and unsatisfied; and the order of the said court for entering up such judgment shall be a sufficient authority to the proper officer for entering up the same; and such judgment [396] shall have the force of a recognizance: *And if at any time it shall appear to the satisfaction of the said court, that such prisoner is of ability to pay such debts, or any part thereof, or that he or she is dead, leaving assets for that purpose, the said court may permit execution to be taken out upon such judgment, for such sum of money as under all the circumstances of the case the said court shall order: such sum to be distributed rateably amongst the creditors of such prisoner, according to the mode (aa) Stat. 7 Geo. IV. c. 57, 2 64; and see stat. 1 Geo. IV. c. 119, 42, 3. (d) 7 Geo. IV. c. 57, 11, 57, 8, 9; and see stat. 1 Geo. IV. c. 119, 40. 25, 29, 30. Ante, 388. OF THE REMOVAL OF CAUSES FROM INFERIOR COUrts. 396 therein before directed, in the case of a dividend made after adjudication; and such further proceedings shall and may be had upon such judgment, as may seem fit to the discretion of the said court from time to time, until the whole of the debts due to the several persons against whom such discharge shall have been obtained, shall be fully paid and satisfied, together with such costs as the said court shall think fit to award; and no scire facias shall be necessary to revive such judgment, on account of any lapse of time, but execution shall at all times issue thereon, by virtue of the order of the said court: Provided always, that in case any such application against any such prisoner shall appear to the said court to be ill founded and vexatious, it shall be lawful for the said court not only to refuse to make any order on such application, but also to dismiss the same, with such costs against the party or parties making the same, as to the said court shall appear reasonable; and the said costs shall be paid accordingly."(a) *CHAPTER XVI. Of the REMOVAL of CAUSES, from INFERIOR COURTS. [ *397 ] THE different modes of commencing actions, in the courts of King's Bench, Common Pleas, and Exchequer, having been already considered, it may be proper to take a view of the various means by which they are removed thither from inferior courts. These are, by writ of certiorari, or habeas corpus, from inferior courts of record; or by writ of pone, recordari facias loquelam, or accedas ad curiam, from such as are not of record. The writ of certiorari(aa) is a writ issuing sometimes out of Chancery, (b) and sometimes out of the King's Bench or Common Pleas :(c) and lieth where the king would be certified of any record which is in the Treasury, or in the Common Pleas, or in any other court of record; or before the sheriff and coroners: or of a record before commissioners, or before the escheator; in which cases he may send this writ to any of the said courts or officers, to certify such record before him in banco, or in Chancery, or before other justices, where the king pleaseth to have the same certified: and he or they to whom the certiorari is directed, ought to send the same record, or the tenor of it, as commanded by the writ; and if they fail so to do, then an alias shall be awarded, and afterwards a pluries, with a clause of vel causum nobis significes, and after that an attachment, if good cause be not returned upon the pluries.(d) Suits commenced in inferior courts of record may, it seems, be removed by certiorari into the Exchequer, by the plaintiff or defendant:(e) And (a) 7 Geo. IV. c. 57, 8 57; and see stat. 54 Geo. III. c. 23, § 14. 1 Geo. IV. c. 119, 25. And for the mode of proceeding against future effects, see stat. 1 Geo. IV. c. 119, 28, 9. 7 Geo. IV. c. 57, 58, 9; and as to the cancelling of the warrant of attorney, and entering satisfaction on the judgment, when the debts are satisfied, see stat. 7 Geo. IV. c. 57, § 62. (aa) Append. Chap. XVI. ¿ 1, &c. (b) Id. Chap. XLV. 8 28. (e) 2 Ld. Raym. 836. 1 Salk. 148. 7 Mod. 138, S. C. Barnes, 345, 399. Pr. Reg. 221. (d) F. N. B. 245. A. B. Gilb. Exec. 175. 6 Palm. 562. (e) Skin. 244, 246. And see Man. Ex. Pr. 152, &c., for the different modes of removing causes into the court of Exchequer. |