1786: 26 George 3 c.38: Regulating the time of imprisonment of debtors

1786: 26 George 3 c.38: An act for regulating the time of the imprisonment of debtors imprisoned by process from courts instituted for the recovery of small debts; for abolishing the claim of fees of gaolers, and others, in the cases of such imprisonment; and for ascertaining the qualifications of the commissioners.

WHEREAS by several acts of parliament now in force, and made to establish or regulate courts for the recovery of small debts in several cities, towns, districts and places within this kingdom, there is no uniform time limited for the duration of the imprisonment of the defendant or debtor, against whom an execution, process of contempt, or precept in the nature of an execution, is issued for nonpayment of such debts and costs, sum or sums of money, as by the order or orders of such courts such debtor or defendant is ordered or directed to pay, but such debtors or defendants are by such acts of parliament to be committed to prison, there to remain for an indefinite length of time, until he, she, or they, shall perform the order of the court or commissioners in that behalf; so that it frequently happens that a poor person, who is not of ability to pay a debt of or under forty shillings, is imprisoned for many months, and sometimes for years, without a possibility of being discharged: and whereas it often happens that poor persons, who are committed to prison by virtue of and in pursuance of the said acts of parliament, for a trifling debt, are kept in custody after they have been enabled to pay and discharge such debt, for gaol fees: and whereas an act was made in the last session of parliament,

[25 Geo. 3. c.45.]

intituled, An act for reducing the time for the imprisonment of debtors committed to prison, upon prosecutions in courts of conscience, in London, Middlesex, and the borough of Southwark, to the same periods in each court; and for abolishing fees paid by those debtors to gaolers, or others, on account of such imprisonment), the purposes of which act have been found to he beneficial; and it is expedient that the like provisions should be extended to all other courts instituted for the recovery of small debts: therefore be it enacted by the king’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,

[Limitation of the time of imprisonment of debtors committed by courts of conscience.]

That, from and after the first day of September, one thousand seven hundred and eighty six, no person whosoever, being a debtor or defendant, and who has been or shall be committed to any gaol or prison by order of any court, or commissioners authorised by any act or acts of parliament for constituting or regulating any court or courts for the recovery of small debts, where the debt does not exceed twenty shillings, shall be kept or continued in custody, on any pretence whatsoever, more than twenty days from the commencement of this act, or from the time of his, her or their commitment to prison; where the original debt does not amount to or exceed the sum of forty shillings, more than forty days from the commencement of this act, or from the time of his, her, or their commitment as aforesaid; and all gaolers, keepers, or turnkeys, are hereby directed and required to discharge such persons accordingly.

II. And in order the more effectually to prevent persons summoned for debts to the said courts from the fraudulent concealment of their money or goods; be it enacted by the authority aforesaid,

[Debtors found guilty of a fraudulent concealment of their effects, may be imprisoned for a longer term.]

That in case, upon the summons of any person for debt before the said court or commissioners, information of any such practice shall be given, such court or commissioners shall have power to hear evidence as to such fraudulent concealment; and in case it shall be proved to their satisfaction, upon the oaths of two or more credible witnesses, (which oath the said court or commissioners are hereby impowered to administer, and which oath, if falsely taken, shall subject the party or parties so taking it to all the pains and penalties of wilful and corrupt perjury), that any such debtor has money or goods which he has wilfully and fraudulently concealed; in that case, the court or of shall have power to enlarge the aforesaid times of imprisonment for debts under twenty Shillings, to any time not exceeding thirty days, and for debts under forty Shillings, to any time not exceeding sixty days; which said circumstance or ground of further detention shall be specified in the said commitment; and the depositions of the witnesses shall be entered in a book to be kept for that purpose by the clerk to each respective court or commissioners.

[Debtors not liable to pay gaol fees.]

III. And be it further enacted by the authority aforesaid, That at the expiration of the said respective times of imprisonment as aforesaid, every such person or persons shall immediately be discharged and set at liberty, without paying any sum or sums of money, fee or fees, or other reward or gratuity whatsoever, to the gaoler, keeper, or turnkey of such gaol or prison, or others, by way of gaol fees, or discharge fees, or otherwise, on any pretence whatsoever;

[Penalty on gaolers demanding such fees.]

and every gaoler, keeper, or turnkey of any such gaol or prison, or others, demanding, taking, or receiving, any fee or fees, sum or sums of money whatsoever, upon the discharge of any such person or persons, committed or to be committed to his custody as aforesaid, or keeping or detaining any such person or persons prisoner or prisoners, after the respective times limited by this act, shall, for every such offence, forfeit and pay the sum of five pounds.

[Two justices may determine offences against this act.]

IV. And be it further enacted by the authority aforesaid, That it shall and may be lawful to and for any two justices of the peace where the offence shall be committed, to hear and determine any offence against this act; which said two justices of the peace are hereby authorised and required, upon any information exhibited or complaint made before them of such offence having been committed, to summon the party accused, and also the witnesses on either side, and to examine into the matter of fact; and upon due proof made thereof, by the oath of one or more credible witness or witnesses, or by the voluntary confession of the party, to give judgement or sentence for the penalty or forfeiture, as in and by this act is directed, and to award and issue out their warrant under their hands and seals, for levying the said penalty of five pounds so adjudged on the goods of the offender, and to cause sale to be made thereof, in case they shall not be redeemed in four days, rendering to the party the overplus (if any); and where the goods of such offender cannot be found sufficient to answer the penalty, to commit such offender to prison, there to remain for the space of two months, unless such penalty shall be sooner paid and satisfied.

[Penalties and forfeitures how to be applied.]

V. And be it further enacted, That all forfeitures and penalties inflicted by this act (the necessary charges for the recovery thereof being first deducted) shall be divided and distributed in manner following; that is to say, One moiety thereof to be paid to the churchwardens or overseers of the poor, for the support and maintenance of the poor of the parish in which the offence shall be committed; and the other moiety to the person or persons who shall inform and sue for the same.

[Informations to be exhibited within a limited time.]

VI. Provided always, and be it enacted, That no person or persons shall be liable to be convicted before any justices of the peace, for any offence committed against this act, unless complaint or information shall be made or exhibited against such person or persons within two calendar months after such offence committed.

[Process not to issue against the body and goods of the same person.]

VII. Provided also, and be it enacted, That it shall not be lawful for any such court or of to issue any process against the body or bodies of any person or persons, where the same person. party entitled to the benefit of any order, judgement, or decree, shall at the same time have obtained any warrant or process against the goods and chattels of the same person or persons.

[Qualification of commissioners.]

VIII. And be it further enacted, That, from and after the twenty-fourth day of June, one thousand seven hundred and eighty six, no person shall be capable of acting as a commissioner in the execution of any of the acts for constituting such courts, unless such person shall be a housholder within the county, district, city, liberty, or place, for which he shall act, and shall be possessed of a real estate of the annual value of twenty pounds, or of a personal estate of the value of five hundred pounds:

[Penalty on acting not being qualified.]

and if any person, not being so qualified, shall presume to act as a commissioner in the execution of any of the acts for constituting such courts, every person so acting shall forfeit and pay the sum of twenty pounds to any person or persons who shall sue for the same, to be recovered, with full costs of suit, by action of debt or on the case, wherein no essoin, protection, privilege, or wager of law, or more than one imparlance, shall be allowed; and the person so prosecuted shall prove that he is qualified as aforesaid, or otherwise shall pay the said penalty, upon proof being given of his having acted as a commissioner in the execution of any of the acts constituting such courts: provided always, that such action or suit shall be commenced within six calendar months next after the offence committed, and shall be laid or brought in the county, city, or place, where the offence shall be committed, and not elsewhere.

Source: Pickering, Statutes at Large, volume 35.