ments, corporeal or incorporeal, or other real estate, whether freehold, customaryhold, or copyhold, which he shall not, by his will, have charged with or devised, subject to the payment of his debts, the same shall be assets to be administered in courts of equity for the payment, as well of simple contract as specialty debts; provided that all creditors by specialty, in which the heirs are bound, shall be paid before the creditors by simple contract, or by specialty, in which the heirs are not bound.

Imprisonment for Debt.

1st and 2d VICTORIA, cap. 110.-[Royal Assent, August 16, 1838.]

An Act for Abolishing Arrest on Mesne Process in Civil Actions, except in Certain Cases; for Extending the Remedies of Creditors against the Property of Debtors; and for Amending the Laws for the Relief of Insolvent Debtors in England.

Sec. 1. Arrest on mesne process abolished, except in certain cases.

2. All personal actions in the superior courts of law at Westminster shall be commenced by writ of

summons.

3. A writ of capias may be issued on the order of a judge, in cases where it shall appear, on the affidavit of the plaintiff, or some other person, that the plaintiff has a cause of action, or sustained damage to the amount of L.20, "and that there is probable cause" for believing that the defendant, or any one or more of the defendants, is or are about to quit England, unless he or they be forthwith apprehended.

4. The sheriff may arrest, within one month from the date of capias, defendant to remain in custody until he finds bail, or makes a deposit as heretofore. 5. Such order and arrest may be made at any time before final judgment.

6. Defendant may apply for his discharge forthwith, and order made on such application may be appealed from.

G

7. Prisoners in custody on mesne process who may have not, at the commencement of the act, filed petitions, under insolvent acts, entitled to be discharged.

8. If any creditor or creditors, entitled to be petitioning creditors under the bankrupt laws, file an affidavit in the court of bankruptcy, that his or their debt is due, and that the debtor is a trader within the meaning of the bankrupt laws, and serve such debtor personally with a copy of such affidavit, and with a notice, requiring immediate payment of such debt, and such trader shall not, within twenty-one days after personal service of such affidavit and notice, pay such debt or debts, or secure, or compound for the same to the satisfaction of such creditor or creditors, or enter into a bond in such sum, and with such two sufficient sureties as a commissioner of the court of bankruptcy shall approve of, to pay such sum or sums as shall be recovered in such action, which shall have been brought, or shall thereafter be brought, together with such costs as shall be given in the same, or to render himself to the custody of the gaoler of the court in which such action shall have been brought, after the recovery of judgment, such trader shall be deemed to have committed an act of bankruptcy, on the 22d day after service of such affidavit and notice;" provided a fiat issues within two calendar months from the filing of such affidavits.

9. Warrants of attorney and cognovits given to any person shall be void, unless executed in the presence of some attorney "expressly named by him, and attending at his request, to inform him of the nature and effect of such warrant or cognovit before the same is executed, which attorney shall subscribe his name as a witness to the due execution thereof, and thereby declare himself to be attorney for the person executing the same, and state that he subscribes as such attorney."

10. Warrants of attorney and cognovits not executed in manner aforesaid "shall not be rendered

valid by proof that the person executing the same did, in fact, understand the nature and effect thereof, or was fully informed of the same."

11. Executions made effectual against "all such lands, tenements, rectories, tithes, rents, and hereditaments, including lands and hereditaments of copyhold, or customary tenure, as the person against whom execution is so sued, or any person in trust for him, shall have been seised or possessed of at the time of entering up the said judgment, or at any time afterwards, or over which such person shall, at the time of entering up the said judgment, or at any time afterwards, have any disposing power which he might, without the assent of any other person, exercise for his own benefit." In case of copyholds, the creditor shall be entitled to hold the same until the amount of the payments and value of the services due in respect thereof, as well as the amount of the judgment, shall be levied. Writ of elegit to have no greater effect than heretofore, as against purchasers, mortgagees, and creditors, at the commencement of the act.

12. Money, bank-notes, checks, bills of exchange, promissory-notes, bonds, specialties, or other securities for money belonging to the debtor, may be seized under a fieri facias, the sheriff shall deliver the money and bank-notes to the creditor, and retain the checks, &c., and sue upon them in his own name, upon the creditor entering into a bond with two securities for indemnifying him for the costs of so doing.

13. Judgments shall operate as a charge upon all lands, &c., and be binding upon debtor, “and against all persons claiming under him after such judgment," "and against the issue of his body, and all other persons whom he might, without the assent of any other person, cut off and debar from any remainder, reversion, or other interest in such lands," &c., and every judgment-creditor shall have the same remedies in a court of equity as he would be entitled to in case such debtor had power to charge, and had, by

writing under his hand, agreed to charge such hereditaments with the amount of such judgment-debt, and interest thereon, provided that no proceeding in equity be taken till after one year from entering up the judgment, and that such charge shall not give the judgment-creditor any preference in case of the debtor's bankruptcy, unless such judgment shall have been entered up one year before the bankruptcy, saving as to purchasers, mortgagees, and creditors, at the commencement of the act, and saving of the doctrine of courts of equity, whereby protection is given to purchasers for valuable consideration without notice.

14. Stock and shares in public funds and public companies belonging to the debtor, whether standing in his own name or in the name of a trustee for him, may be charged by the order of a judge, which "shall entitle the judgment-creditor to all such remedies as he would have been entitled to if such charge had been made in his favour by the judgment-debtor;" provided that no proceedings are taken thereon until after six calendar months from the date of the order.

15. Order of judge to be made in the first instance ex parte, and on notice to the bank or company to operate as a distringas. Unless the debtor, within a time to be mentioned in such order, should show good cause to the contrary, the order will be made absolute, and render invalid, as against the judgmentcreditor, any disposition made by the debtor in the meantime.

16. Securities not realized to be relinquished, if the debtor's person be taken in execution.

17. Judgment-debts shall carry interest at the rate of L.4 per cent. per annum, from the time of entering up the judgment, or the commencement of the act, if previously entered up.

18. Decrees and orders of court of equity, rules of courts of law, orders of the lord chancellor, and court of review in bankruptcy, and orders of the lord chancellor in lunacy, whereby any sum of money or costs shall be payable, shall have the effect of

judgments, and the powers by the act given to judges of the superior court of common law, with respect to matters depending before them, may be exercised by the courts of equity with respect to matters before them.

19. No such judgment, decree, order, or rule, shall have effect under the act as against purchasers, mortgagees, or creditors, unless and until a memorandum or minute containing the name, and the usual or last known place of abode, and the title, trade, or profession of the person whose estate is intended to be affected thereby, and the court and the title of the cause or matter in which such judgment, decree, order, or rule, shall have been obtained or made, and the date thereof, and the account of the debt, &c., recovered or ordered to be paid, shall be left with the senior master of the common pleas, who shall forthwith enter the same particulars in a book, which all persons may search on payment of one shilling.

20. New writs to be framed.

21. Powers, &c., of the act applicable to the courts and judges of Westminster, to be applicable to the courts of Lancaster and Durham, under certain restrictions.

22. Authorises the removal of judgments of inferior courts, of which the judge, assessor, or assistant, shall be a barrister of not less than seven years' standing, and gives to them the validity of a judgment of a superior court, and the remedies for enforcing them, upon being removed, and upon the writ of execution thereon being delivered to the sheriff.

23. to 122. Are a re-enactment, with some alterations, of the acts for the relief of insolvent debtors. 123. Commencement of act, 1st October 1838.

• And also the date on which the memorandum is left. Vide infra, p. 168.

In analogy to the recent alteration in the bankrupt law, the 45th section enacts, that the estate and effects of the insolvent shall vest in the assignee by virtue of his appointment, without any conveyance or assignment.