1704: An act for the discharge of Insolvent debtors

1704: 2 & 3 Anne c.16: An act for the Discharge out of Prison such Insolvent Debtors as shall serve or procure a person to serve, in her Majesty’s Fleet or Army.

Note: Regnal code sometimes given as c.10.

Whereas by an Act of Parliament, made in the First Year of her present Majesty’s Reign, intituled, An Act for the Relief of poor Prisoners for Debt, it was intended and designed by virtue thereof to supply her Majesty with Recruits both by Sea and Land, during this present War, as well as to relieve the said poor Prisoners; but by reason no Prisoners could be discharged by virtue of the said Act, who were indebted above the Sum of Twenty Pounds, besides Costs of Suit; and for that by the said Act there was no Particular Direction how they should list or enter themselves in her Mjesty’s Service, the same did not answer the Intent for which it was made: Wherefore to supply the Defects which did obstruct the good Ends and Purposes of the said Act, be it enacted by the Queen’s most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the Authority of the same, That it shall and may be lawful to and for the Justices of the Peace of any County, City, Town, or Liberty, within the Kingdon of  England, Dominion of   Wales, and Town of   Berwick upon  Tweed, where any Person or Persons, being actually a Prisoner or Prisoners on the Eight Day of  November, One Thousand seven hundred and three, for any Debt or Damages, or for or upon any Action or Actions, or upon any Mesne Process for Debt or Damage, or who may have Judgement or Judgements entred upon Record against him, her, or them, or are charged in Execution, or imprisoned upon Contempts or Attachments for Debt, or upon Outlawries before or after Judgement, or upon any other Process whatsoever, for any Debt, Sum or Sums of Money, contracted before the Eight Day of   November, One Thousand seven hundred and three, who shall be found or becom eso poor, that he or she hath not wherewith to maintain him or her self in Prison, without being burthensome to their respective Relations, or the Counties, Cities, or Parishes where such Prisoners are, then and in such Case, it shall and may be lawful to or for any of the said Justices of the Peace, upon the Petition of any poor Prisoner or Prisoners, to summon the Person or Persons at whose Suit or Suits he, she, or they are detained in Prison, their Executors, Administrators, or Assigns, and also the Gaoler or keeper of the Prison, where such poor Prisoner or Prisoners are or shall be committed or detained, to bring such Debtor or Prisoner before the Justices of the Peace at their General Sessions in open Court, with a Copy of his, her or their Causes of Commitment. And in case such a Prisoner shall take an Oath to the Effect following,   viz.

I A.B. do, upon my corporal Oath, solemnly profess and declare before Almighty God, that I have not any Estate, Real or Personal, in Possession, Reversion, or Remainder, or in Trust, of the Value of Ten Pounds in the whole, or sufficient to pay the Debt or Damage for which I am imprisoned; and, that I have not directly or indirectly sold, leased, or otherwise conveyed, disposed of, or intrusted all or any Part of my Estate, thereby to secure the same, to receive or expect any Profit or Advantage thereof, or to defraud or deceive any Creditor or Creditors whatsoever, to whom I stand indebted.

II. Which hath the said Justices of the Peace, at their General or Quarter Sessions in open court, are hereby impowered to administer, and to examine upon Oath the Prisoner, or any other Person, about the Prisoner’s Poverty, if they see Cause; and also the Summoner, of the true Service and Notice given to the Creditor or Creditors, their Executors, Administrators, or Assigns, Gaoler, or other Person: And after the taking the said Oath, such Creditor or Creditors, so summoned, shall shew cause why such poor Prisoner or Prisoners shall not be discharged from his, her, or their Imprisonment; and if such Creditor or Creditors, at whose Suit or Suits such poor Prisoner is detained, do insist or desire the Prisoner to be kept in Prison, the Justices in open Court, or any Two or more of them, are hereby required and impowered to cause such Creditor or Creditors to provide a Maintenance for the said poor Prisoners, not exceeding four Pence  per Day, which shall be paid to the Prisoner himself, and not to the Gaoler, Keeper, or any other Person for him: And if within the space of Three Months after such Allowance by any Creditor, no Estate of the Prisoner’s shall be discovered or made out, before Two Justices of the Peace of the County where the Prisoner is kept in Prison; or if the Creditor or Creditors neglect Payment of such daily Allowance for the space of Thirty Days, or upon the Default of the Appearance of the Creditor or Creditors so summoned, the Justices of the Peace in open Court may discharge the Person only of such Prisoner, from his or her Imprisonment, from all or any Debts contracted befor the said Eighth Day of   November; which Order of Discharge, being signed and sealed by any Two or more of the said Justices, shall save harmless every Sheriff, Gaoler, and Prisoner, having a Duplicate thereof.

III. Provided always, That the Discharge of the Prisoner or Prisoners shall not discharge his, her, or their Debt or Debts, nor any other Person or Persons jointly or severally bound with him or them, nor any other Security, nor any Debts, Fine or Offence to the Queen, but that all and every Judgement or Judgements against him, her, or them, shall stand good to all Intents and Purposes against the Lands, Tenements, hereditaments, Goods and Chattels of the said Prisoner or Prisoners so discharged; and that it shall and may be lawful to and for any Creditor or Creditors, his, her, or their Executors, Administrators, or Assigns, to take out any new Execution or Executions against the Lands, Tenements, hereditaments, Goods and Chattels of the said Prisoner or Prisoners; any Law, Usage, or Custom to the contrary thereof in any wise notwithstanding.

IV. And be it further enacted by the Authority aforesaid, That if any Person or Persons, who shall be discharged by virtue of this Act, shall at any time or times, after his, her, or their Discharge or Discharges, be again arrested or detained for any Debt or Debts, Action of Trespass upon the Case, Duty, Sum or Sums of Money whatsoever, contracted or due before the said Eighth Day of  November, then such Person or Persons so arrested or due before the said Eighth Day of  November, then such Person or Persons so arrested, shewing a Duplicate that he or she hath been discharged, upon summoning the Person or Persons, at whose Suit he or she is detined, shall again be discharged and set at Liberty by any Two or more of the said Justice of the Peace (whereof One to be of the Quorum) upon an Appearance by an Attorney for such Prisoner or Prisoners in the proper Court where such Prisoner or Prisoners shall be arrested; and the Person of such Prisoner or Prisoners shall be for ever free, whether a Prisoner on Mesne Process, or in Execution for any Debt, if contracted on or before the said Eighth Day of  November.

V. And be it futher enacted by the Authority aforesaid, That if any Sheriff, Gaoler, Prisoner, or any other Person, shall refuse to obey such Summons or Orders, as shall be made by the Justices at any of their Meetings or Adjournments, every Person so offending shall for every such Offence be fined at Discretion of the persons authorized to put this Act in Execution, in any Fine, not exceeding Ten Pounds, to be disposed in such manner, as the major part of the Justices of the Peace, at their General or Quarter Sessions, shall think fit, and upon Non-payment of such Fine, they are hereby impowered to imprison the Person or Persons so offending, until such Fine is paid.

VI. And be it further enacted by the Authority aforesaid, That upon any Action of escape, or other Suit, brought or to be brought against any Justice of the Peace, Sheriff, Gaoler, or Prisoner, for any thing done in Obedience to this Act; it shall and may be lawful to and for such Justices of the Peace, Sheriff, Gaoler, or Keeper of any Prison, Officer or other Person, to plead the General Issue, and give this Act in Evidence, which shall be a good and sufficient Discharge, and shall save harmless every such Justice of the Peace, Sheriff, Gaoler, or Keeper of any Prison, Officer, or any other Person pleading the same; and if the Plaintiff in any such Action shall be nonsuited, or Verdict pass against him, the Defendant shall have treble Costs, to be tared by the Court where such Action shall be brought.

VII. provided always, and be it enacted by the Authority aforesaid, That no Prisoner or Prisoners shall be discharged by virtue of this Act, until he, she, or they shall, before the Justices of the Peace, who are by this Act impowered to discharge him, her, or them, declare upon his, her, or their Corporal Oath (which Oath the said Justices are hereby impowered to administer) what Effects are belonging to him, her, or them, or what Debt or Debts are then owing to him, her, or them, by any Person or Persons whatsoever, within any of her Majesty’s Dominions, or elsewhere, to the best of his, her, or their Remembrance, and by whom, and for what Cause, and upon what Security; of all which a Schedule or Inventory shall be made in the presence of such Justices, and subscribed by the Prisoner, and shall be by such Justices ordered to be kept by the Clerk of the Peace, for the better Information of the Creditors of such Prisoner, who, or such of them as will join, may thereupon, in the Name of such Prisoner, sue for such Debts, or so much thereof as will satisfy them, such Person and Persons saving the Prisoner harmless from all Nonsuits and Prosecutions on any such Action or Actions, and after the same is recovered and received, to render the Overplus (their own Debts and Charges first deducted) to the Prisoner for the Satisfaction of other Debts, if any shall remain due from him.

VIII. And be it further enacted by the Authority aforesaid, That all Persons discharged by virtue of this Act, are and shall be freed and discharged from all Chamber Rent, and other Fees to Gaolers, and their respective Officers, and all Securities given by such poor Prisoners, or others bound with them, to any Gaolers, or to any other Person in trust for them, are hereby also discharged and made void.

IX. And be it further enacted by the Authority aforesaid, That every poor Prisoners wearing Apparel, Bedding, and Tools necessary for his or her Trade (not exceeding Ten Pounds in Value) is hereby excepted from being liable to be seized or attached for any Debt contracted before the said Eighth Day of  November.

X. Provided always, That no Person or Persons, by virtue of this Act, shall be discharged out of Prison, who shall stand charged and indebted in more than the Sum of One hundred Pounds to any one Person principal Money and Damages.

XI. Provided also, and be it further enacted by the Authority aforesaid, That no Man shall, during the present War with France and  Spain, be discharged from his Imprisonment, or have any Benefit or Advantage by means of virtue of this Act, or any thing therein contained, unless such Man do and shall enter or list himself into her Majesty’s Service by Sea or Land, and continue in such Service during the continuance of this present War, or in his Stead and Place procure an able bodied Man to be entred or listed, and continue in her Majesty’s Service, during the said War; every Person, so to be listed, shall be listed before or by such Person or Persons, as her Majesty, under her Royal Sign Manual, shall appoint.

XII. Provided also, and be it further enacted by Authority aforesaid, That is any Person shall be guilty of wilful Perjury to gain any Advantage by this Act, such Person being thereof lawfully convicted shall, beyond, and over, and above the Penalties which may, by the Laws now in being, be inflicted, be committed to the house of Correction, there to remain for the space of Twelve Months without Bail or Mainprize, and be kept to hard Labour, during such time of his Imprisonment.

Source: The Statutes At Large, vol. 3, 1734, p.666, published by John Baskett, via Alsatia.