The regulations of the 7 & 8 Vict. c. 96, as to debts under 20/. caused universal dissatisfaction among creditors in Eng land and Wales, as we have already ob served. The debtors, we may presume, were satisfied with the new law. The evidence taken before the Lords' Commit tee in 1845 proved the necessity of amending this act. The history of this piece of unwise legislation and of its cor rection is useful. It shows how ill considered measures may sometimes become law in this country, in which the mass of public business is so enormous that important statutes are sometimes enacted in great haste and consequently without due deliberation. it also shows that the force of opinion, when sustained by sound reasons and directed by men of judgment, is strong enough to induce the legislature to amend their mistakes.
The law of debtor and creditor has been a difficulty in all countries. In England an insolvent debtor may, in certain cases, be subjected to the opera• tion of the Bankrupt Laws. [BANK RUPT.] If he cannot claim the benefit of the Bankrupt Laws, he is subject to the law that relates to insolvent debtors. The question of arrest and imprisonment for debt has been chiefly discussed with reference to insolvent debtors, that is, the class of debtors whose debts have not been contracted in the operations of trade or commerce, or under such circum stances as to bring them within the Bank rupt Laws.
Formerly there were two kinds of arrest in civil cases, that which took place before trial, and was called arrest on mesne process; and that which takes place after trial and judgment, and is called arrest on final process. In the arrest on mesne process it was only ne cessary for the plaintiff to make an affi davit that the cause of action amounted to 201. (7 & 8 Geo. IV. c. 71), upon which he could sue out a writ called a copies, which was directed to the sheriff, who thereupon gave his officers a warrant for seizing the alleged debtor. The sta tute 1 & 2 Viet c. 110, §§ 2, 3, 4, 5, 6, enacted that no person can be arrested for alleged debt before a judgment has been obtained against him, unless it can be shown to the satisfaction of a judge of one of the superior courts that the plaintiff has a cause of action against such person to the amount of 20/. or upwards, and that there is probable cause to believe that the defendant is about to quit Eng land. A defendant may also be arrested upon mesne process when he has received an unfavourable judgment in the court for the relief of insolvent debtors (1 & 2 Vic. c. 110, § 85).
Arrest in execution is therefore now the only arrest that is of any practical importance : it means the arresting of a man after a court of justice has decided that he owes a debt. The ground of ar resting the man is, that he does not pay the debt pursuant to the judgment; in other words, he disobeys the command of the court, which has declared that he must pay a certain sum of money to the plaintiff On the subject of maintaining the law of arrest in execution there has been dif ference of opinion. The best arguments in favour of it that we have seen are contained in a Supplementary Paper on Bankruptcy and Insolvency, by William John Law, Esq. Dissentient from the Report. Presented to both Houses of Par liament, 1841: Mr. Law did not sign the report of the other commissioners on the subject because he did not agree with them ; and the Supplementary Paper con tains the reasons of his dissent.
With respect to arrest in execution, Mr. Law's intimate knowledge of the relation of debtor and creditor has en abled him to answer fully all the argu ments of those who attempt to show the insufficiency of this final arrest. He has proved beyond doubt the justice of this final arrest, or if the word justice be ob jected to its usefulness to the community. A man is not now arrested till he has disobeyed the judgment of a court of justice. It is his business to show why
he disobeyed the judgment ; and in the mean time either his person must be secured, or the judgment of the court must be treated as a mere idle form. It may be said, the plaintiff can proceed to take the debtor's property : but even visi ble property cannot always be got at ; for when the sheriff goes to seize it, "some one on the premises holds up a bit of parchment called a bill of sale, and frightens him out again ; there is not one plaintiff in five hundred, great or small, who has courage enough to indemnify the officer, and defy the fraud." If there is this difficulty as to the taking posses sion of a debtor's visible property, what must be the difficulty of getting at the property of the debtor which is not visi ble ? And what other mode can be sug gested of compelling the defendant to give a true account of all his property than to imprison him until he does ? defendant has always been prone to place his property out of reach of an execution, but there has been this one restraint: he says to himself, If I make my property safe, they will take me, and then I must bring it forward.' When property only can be touched, the argument is changed, it becomes this : If I make my property safe, my enemy can do nothing.' So necessary is process against the person for process against the property, and so unreasonable is it to require of the cre ditor by record the establishment of any further case, in order to entitle him to an execution. His judgment is his case: the clearest duty lies on the other to establish his exemption from the task of satisfying it." The great argument of the Report from which Mr. Law dissents is this : that all execution against the person presumes fraud. This argument is very absurd. The presumption ought to be against the debtor who does not obey the judgment a the court. He may be guilty of fraud or he may not : it is his business to ex plain why he disobeys the order of the court. This argument against execution is founded on the presumption being in the debtor's favour, instead of being, as it is, against him. "The practical justice and wisdom is in subjecting all (debtors) to searching inquiry, for the purpose of ascertaining whether they are dishonest or not. I am quite sure that in that court (the Insolvent Court) where search ing inquiry is known and practised, it is found necessary to be applied to every case as the means of disclosing its true character and merits." " Blamelessness must not be presumed : faultiness is to be presumed : it may or may not be that which is told by the word fraud; the precise shade cannot be pre sumed; the character and degree are to be learned through a deliberate and forced enquiry. It is misrepresentation to say that fraud is presumed and punished on presumption ; the coercion which was once purely punishment is now necessary coercion to the investigation of a ques tion in which presumption is and ought tote against the party coerced. The debtor in execution is the applicant for indul gence ; he has to establish his ease ; but he is at liberty to institute proceedings to wards this question instantly on his arrest; and not only is he at liberty to seek exemp tion from the consequences of the injury which he has done to the particular party who has pursued him, but to use the same opportunity for acquiring a privilege against every person in the kingdom to wards whom he stands in a similar predica ment : on giving to the true owners a part their property, or on showing that there remains no part to surrender, he receives, if excuse is found for granting it, this great boon—a total freedom for the future of person and property ; save that if ever he become in the full and fair sense of the words of ability to pay, there will reside in a competent tribunal the power to ascertain that ability and to exact that payment.