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judgement_n arrest_n defendant_n plaintiff_n 1,868 5 10.0990 5 false
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ID Title Author Corrected Date of Publication (TCP Date of Publication) STC Words Pages
A92235 Reasons for the continuance of the process of arrest, for the good of the Common-wealth. 1659 (1659) Wing R513; Thomason 669.f.21[48]; ESTC R211214 4,574 1

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nation of this great alteration of the Law and except men have sufficient notice some good time before this great change come that so they may if possible altar and obtain other security then now they have the losses and complaints will be very many and great for the person is commonly the best and in many cases the only security so that this sudden intended alteration will not only weaken all mens security but quite destroy all the security that many have 15. If the person may not be attached the Plantiff will be put to find out the Defendants Estate which will be a great trouble and in many cases cannot be done 16. A very great part of our Lands are Copy-hold-tenure and not liable to pay debts nor can be without manifest wrong to the Lord of the Mannor and another great part is Land either intailed that the Heir is not liable or else is made over to others upon consideration and if the person may not be attached the Creditor can have little and where there is Land and the Plantiffe have a Judgement he can have but the moity which doth seldom satisfie 17. It is injustice to protect any mans person from paying a just Debt for no man may protect another from making good his own bargain and contract without sin and it is against the Law of Nature and Nations 18. It will easily appear that Arrests for Debt and for other things were granted upon the peoples Petition for the common good finding a necessity of it for the promoting of Trade and avoyding of Collusion among themselves 19. There is no Process that will so much keep the people to their Contracts and Promises and that without delay and before Judgement can be obtained as the Process of Arrest doth being the most co-erceive way and that which doth over-awe the worst of men 20. To exempt the person from Arrest will much gratifie that sort of people who want honesty to pay their Debts and will be glad that their persons may be free they will be sure to have nothing before-hand lest the Creditor should finde any thing whereas the fear of a Prison or Arrest would make them follow their Callings spend less and save something to pay their Debts 21. If the person may not be attached servants will grow licentious men will have liberty to quarrel fight and commit trespasses and despise the Magistrate and all good government more then ever they had whereas the Law did never protect any mans person that did not keep the peace 22. By exemption from Arrest a very great part if not the halfe of this Nation that have neither Land nor other visible Estate to answer their under-taking can neither borrow money nor Trade nor be compelled to do what the Law requires of them 23. At Gen●va ●aws of New ●ngland print●… at London 1641. and in all Foraign Nations known to us the Body Land and Goods are liable to pay Debts and if the Creditor have seised upon all the Estate and have not satisfaction he may keep the Debtor in Prison if he will nor is the present government in New England without Arrests where every Court hath Ministers of Justice to attach and fetch persons before the Magistrate 24. There was never any Nation that did with more vigor and zeal endeavour the expulsion of Tyrants and the maintenance of the people in their Liberty then the Athenians and Romans and made the best Laws yet the Athenians did Arrest for Debt before Judgement as may appear by divers passages in some of their Authors yet extant and the like was done by the Romans after the expulsion of their Kings as may appear by the lawes of the twelve Tables and collections of divers Civilians and Antiquares and the same practise was used among the Romans in after-times as may appear by some old Lawyers in the digests of the Civil Law 25. In 2. R. 2. Robert de Henley Esquire was Arrested at Westminster at the time of Mass and went into the Abbey for protection the Officers followed him and upon resistance he and his men were both slain the Clergy made a great complaint in Parliament as appears by the Parliament Roll that the priviledge of the Church was infringed and that a great affront was given to the Popes holiness upon this the King being moved the Lords and Commons alledged and called the Judges to witness and vouched Records that it was against the Law of the Land to protect any from paying their Debts and the great Divines and Lawyers of those times being called resolved the King upon their Oaths that neither God himself saving his perfection nor the Pope saving his holiness nor any King could protect any man from paying his Debts and at that time they judged it a sin to protect such because it was a sin for a man not to pay his Debts Object If it be objected that it is a great trouble to get mens persons attached and therefore the intent is but to take away the Arrest before judgment only and not after Answ Experience is the wisest guide in this matter which tels us that it will be much more difficult after Judgment to Arrest then before and more unsafe for the Plaintiff to rest upon that because the Defendant hath notice of the Judgement and may having time easily absent himselfe and therefore upon the first Arrest which commonly is not known before hand for the good of the Plantiff the Common Law doth provide that the Defendant shall if the Plaintiff and the Cause require it give sufficient Bayl that if Judgement pass against him then he shall either pay the Debt or yield his body to Prison or else his Bayl are to make it good without any Arrest after Judgement so that it is of great consequence for the Plantiff to have liberty to attach the person before Judgement for by this means he hath a double security and is more encouraged to proceed to Tryall otherwise he might lose all the fruit of his Judgement which is by this meanes prevented
Reasons for the Continuance of the Process of ARREST for the good of the Common-wealth 1. BEcause attaching the person doth secure the Plantiffs debt either by present payment or causing other satisfaction which the proceedings by summons doth not and as a man will give all for his life so he will do much for his liberty 2. When men are detained upon the Arrest which is but seldom for few are arrested in comparison and then it is ordinarily but for a short time untill they have given security to answer the Action or some Warrant to appear 3. If men may not proceed by Arrest it will much hinder Trade and other dealings for men will not adventure to trust where there is much liberty for the Debtor to stand out and Merchants and Tradesmen many times look upon the person as the best security and the remedy by Arrest the speediest to gain their debts without which Trade will necessarily decay 4. The Process to arrest doth end most Suits before the person be attached and before appearance as experience doth shew for when men will not regard a summons they will take course before they will suffer an Arrest 5. Men will take occasion from the summons as formerly they have done to be gone from one Countrey to another 2. H. 3. ca. 23. and to make away their Estates and though the Plantiff know it yet he cannot help himself which the Arrest doth prevent and the Law-makers of this land have ever held it more reasonable to provide for the satisfaction of the Creditor then the liberty of the Debtor 6. England is an Island compassed about with many Port-Towns where there are many Merchants and men that go abroad and trade by sea who buy Wares upon credit and there will be continual occasion of Suits against divers persons of this sort who will not much regard the summons but will betake themselves and their Estates to Sea again and the Creditor can have no remedy whereas if the parties be attached they will make satisfaction 7. Whereas divers Tradesmen subsist upon their credits and take up great sums of money for which they can give no other security then their persons and by advantage thereof many times attain to great Estates but if the process of Arrest be taken away they can hope no more to be intrusted which apparently tends to their ruine 8. Iath 5. 25. And that proceedings by Arrest may not seem at all cruel or unjust we find both Presidents and Approbation of the like and greater severity in the Old and New Testament Iath 18. 25. 9. as selling the Debtor his Wife and Children and all that he had to make payment and of taking and casting into prison for debr untill the utmost farthing were paid and yet this course was not condemned among the Romans so much they loved Justice nor by Christ himself in the New Testament who bids agree with thy Adversary quickly King 4. 1. 7. before thou come to the Judge and God who will have that which is right to be done among men was very carefall that his own people should pay their debts evir 25. 39. and therefore if any were indebted though they were poor and could not pay yet the Creditor might take the Debtor and his Children to be his bondmen rov 10. 16. or servants and might take mens garments from them and the bedding whereon they did lie from under them which was a far greater punishment then our light Arrests rov 22. 27. and the prison with us is but a gage ot pledge untill the Defendant take course to answer the Action according to the Law 9. Men ordinarily begin Suits upon necessity and Debtors generally are called upon before any Suit is commenced which indeed is in the nature of a summons but yet neither this nor the lawful summons doth drive men to take any course until the process of Arrest issue forth being more compulsory and a more speedy remedy for the Creditor then the summons was found to be as appears by sundry Statutes which are more provisional for the Creditor who is always out of his money then for the debtor who seldom well spent it ● H 7 cap. 9. nor hath care to repay it 10. And if by any new way upon meer summons only and default Judgement shall be had before appearance which course the Law doth not countenance then the grand pillar of our common Law the trial by twelve men which the Law doth much honor and favour will fall to the ground for much business will rest wholly upon the Affidavit of a summer or the like which will be a means to multiply Suits and is in an unsure course and will induce more perjury into this nation then our Law would ever fore this time give an inlet unto and therefore former Parliaments providing against delays by Summons did not give Judgement upon default but found out a speedy remedy by Arrest to bring the Defendant to his answer 11. By the Law a Capias ad satisfaciend doth not lie but where there is a Capias ad respondend first and there is as great reason and enquity for the Arrest to answer before Judgement Rep. fol. 12. as for the Arrest to satisfie after Judgement because the Capias ad respondend doth compel the Defendant to take notice of the Action to which he may plead if he will and doth secure him that he shall not start so that when the Capias ad satisfaciend doth issue forth there is left no colour of just exception for the Defendant but on the otherside if Judgement shall be entered upon a supposed summons there will be many grievous complants and the succeeding evils will hardly be redressed many will be undone and Suits will be multiplied 12. Experience doth shew that the benefit of the process of Arrest hath been very great to this Common-wealth and all the Statutes which have mentioned it from time to time have given a larger extent unto it then before it had and none have abridged it in any thing which is now of great antiquity having been for many ages the best remedy for the people to recover their debts and to compose other differences that our Ancestors could divise 13. The subtilty and subterfuges of debtors having made the process of Arrest now more necessary then formerly ●dditional there will be reason rather to add to the remedies provided for the creditor in former Parliaments then to dimish them ●easons and if any inconvenience by this so necessary a course happen to the Debtor yet will the taking it away prove more prejudicial to the Plantiff who is the party injured and in reason his case to be prefered and favoured 14. If mens persons be exempted from Arrest it will wrong multitudes who have taken already the persons of men for their best security which cannot be remedied except warning aforehand had been given to the