December 1649: An Act for discharging from Imprisonment poor Prisoners unable to satisfie their Creditors.

December, 1649

[21 December, 1649.]

Any Prisoner for Debt may have a Habeas Corpus cum causa.; Justices authorized to administer this.

Be it Enacted by this present Parliament, and by the authority thereof, That if any person who is, or shall be on the Twenty one of December, One thousand six hundred forty and nine, in Prison in any County, City, Town or place within England, the Dominion of Wales, or the Town of Berwick upon Tweed, upon any Execution, or any other Proces, where the cause of Action was originally for Debt, or for breach of Promise, Contract or Covenant, shall by his Petition desire any Justice of Peace of the County, City, Town or place wherein he is so imprisoned, to make a Warrant in the nature of a Habeas Corpus cum causa, under his Hand and Seal, to the Sheriff, Gaoler or Keeper of the said Prison, to bring without delay the body of the same Prisoner, and return the cause or causes of his Imprisonment before him, to the intent that the said Justice of Peace may administer unto the said Prisoner, the Oath herein after mentioned; That then the said Justice of Peace, upon such Petition so made, shall be authorized and enjoyned by this present Act, forthwith to make a Warrant under his Hand and Seal, in the nature of a Writ of Habeas Corpus cum causa, to the said Sheriff, Gaoler or Keeper of such Prisoner, returnable at a short day then next following, according to the distance of the place, to bring the Body of the said Prisoner, and to return the cause or causes of his Imprisonment before him; And if upon the return of the said Warrant in the nature of a Writ of Habeas Corpus cum causa, it shall appear that the said Prisoner is in Prison for any the causes aforesaid, at the Suit of one or more person or persons, upon any Execution or Executions, or other Proces, That then the said Justice of Peace, upon the request of the said Prisoner, shall and is hereby authorized to administer to the said Prisoner this Oath, viz. Mutatis mutandis in respect of the person or persons so taking the same,

Oath

That bona fide he or she is not worth in Possession, Reversion or Remainder of any Estate Real or Personal, except onely the Debts due to him or them from the Parliament, for the service of the Commonwealth, to the value of Five pounds, besides necessary wearing Apparel, and Bedding for himself, Wife and Children, and Tools necessary for his Trade or Occupation, not exceeding the value of Five pounds; and hath not directly or indirectly Sold Leased, or otherwise conveyed or intrusted his or her Estate, or any part thereof, thereby to expect any profit, benefit or advantage, or to deceive or defraud his Creditors.

Justice to certifie.; Judges to issue out Scire facias.; Fourteen days warning; In what case Judgement shall be given for Enlarging Prisoners.; What Plea shall be admitted against the Prisoner.; Reply.

And upon the said Prisoners taking or refusing to take the said Oath, the said Justice of Peace is hereby required and enjoyned, to remand the body of the said Prisoner to the Prison from whence he came; And in case the said Prisoner shall take the said Oath, then the said Justice of Peace shall without delay, by writing under his Hand and Seal, make Certificate or Certificates, as well of the said Prisoners taking of the said Oath, together with the time and place of the taking thereof, as of the said Warrant in the nature of a Habeas Corpus, with the return thereof, unto the Court or Courts from whence the Proces or Processes of Execution or Executions issued upon which such Prisoner was imprisoned: And upon return of the said Certificate or Certificates into the Court or Courts aforesaid, the Judges of the said Court or Courts are hereby authorized, enabled and required thereupon, to issue out, or cause to be issued out, Four days of course, under the Seal or Seals of the said Court or Courts (at the suit of the said Prisoner) one or more Writ or Writs of Scire facias, with a Non omittas propter aliquam libertatem, grounded upon the said Certificate or Certificates (every of the said Writs to have Thirty days at the least between the Teste and the return thereof) directed to the Sheriff or Sheriffs of any County, or any Major or Bayliff of any City, Borough or Town Corporate in England or Wales, wherein the party or parties (upon whose Action, Suit or Prosecution the said Prisoner is imprisoned) or his or their Executors or Administrators, or some of them respectively, shall be supposed to be dwelling, and thereby to command the same Sheriff or Sheriffs, Bayliff or any other Officer authorized by the Law, to give Fourteen days warning at the least before the return of the said Writ or Writs, to the person or persons, at or upon whose Action, Suit or Prosecution the said Prisoner is imprisoned, or to his or their Executors or Administrators, or some of them respectively, in case he or they, or some of them respectively may be found; and in case he or they, or some of them respectively cannot be found, then to leave a writing under his hand and seal, at the least Fourteen days before the return of the said Writ or Writs, at the dwelling place or places of him, them or some of them respectively, therein reciting the said Writ or Writs, and thereby requiring him or them to appear in the same Court or Courts, at the day and place in the said Writ or Writs limited, to shew cause, according to the purport of the said Writ or Writs, wherefore the said Prisoner shall not be inlarged out of Prison according to this Act; whereupon the Sheriff or Sheriffs, or any other legal Officer, shall make his or their return or returns of his doings therein accordingly, and if the said Sheriff or Sheriffs, or any other legal Officer shall return, that he hath warned the said person or persons, or left such writing of warning at his or their dwelling place or places, according to the command of the said Writ or Writs; and if the person or persons so warned, or for whom such writing of warning shall be left to appear as is aforesaid, shall not at the day or days of the return of the same Writ or Writs appear in person, or by his or their Attorney or Attorneys, or shall appear and confess the surmise of the said Writ or Writs to be true, or if he or they after such appearance shall plead nothing in Bar of the said Writ or Writs, and the surmise therein contained, or shall not plead thereunto as hereafter is directed and expressed, Then and in such case, the said Court or Courts shall, and are hereby enabled and authorized to give Judgement by Confession, nihil dicit non sum informatus, or otherwise, as is usual in like cases, for the inlarging and discharging the said Prisoner out of Prison, and thereupon to award a Writ unto the Keeper of the said Prisoner for his inlargement and discharge accordingly: And in case the said person or persons so warned, or for whom such warning shall be left as aforesaid, shall appear upon the return of the said Writ or Writs, then he or they shall not plead any thing to hinder the inlargement of the said Prisoner, other then that the said Prisoner hath a greater Estate real or personal then is expressed in his said Oath; or that the said Prisoner hath directly or indirectly conveyed or intrusted his or their Estate, or some part thereof, expecting to have some benefit or advantage, or to deceive or defraud his Creditors; or that the said Prisoner hath been in Arms against the Parliament of England, or hath adhered to the Forces raised against the same: And if he or they shall plead unto the same, that the said Prisoner hath a greater Estate real or personal then is expressed in his said Oath; or that the said Prisoner hath directly or indirectly conveyed or intrusted his or their Estate, or some part thereof, expecting to have some benefit or advantage, or to deceive or defraud his or her Creditors; or that the said Prisoner hath been in Arms against the Parliament of England, or hath adhered unto the Forces raised against the same, then the said Prisoner by his Attorney shall thereunto reply, and take issue thereupon; and if by Verdict of Twelve men it shall be found for the Prisoner, then the said Court shall give Judgement for the inlarging and discharging of the said Prisoner out of Prison, and thereupon award a Writ unto the Keeper of the said Prisoner for his inlargement and discharge accordingly; but in case the said Verdict shall be found against the Prisoner, then the said Prisoner shall remain and continue in Prison, in Execution or otherwise, as formerly he did, and as if this Act had never been had or made.

Forma pauperis.

Provided always, and be it further Enacted by the Authority aforesaid, That all and every such Prisoner and Prisoners as shall desire the benefit of this Act, shall be admitted by vertue of this Act, to sue out and prosecute all and every the said Writs, Warrants, Returns and Proceedings before mentioned, in forma pauperis.

Judgements to stand good against lands and goods of prisoners discharged; except bedding, wearing apparel and Tools.

Provided also, and be it further Enacted by the authority aforesaid, That notwithstanding the discharge of the person of such Prisoner as is aforesaid, all and every such Judgement had or taken against him, shall be, and stand good and effectual in the Law, to all intents and purposes, against the Lands. Tenements and Hereditaments, Goods and Chattels of the said Prisoner or Prisoners so discharged as aforesaid, and that it shall and may be lawful, to and for every Creditor of such Prisoner or Prisoners so discharged as aforesaid, his Executors, Administrators or Assigns, to take out any new Execution against the Lands, Tenements, Hereditaments, Goods and Chattels of such Prisoner or Prisoners (his wearing Apparel, Bedding for him and his family, and Tools necessary for his Trade and Occupation, not exceeding the value of Five pounds, onely excepted) for the satisfaction of his or their said debt, in such sort, maner and form as he or they might have done, if the person or persons of such Prisoner or Prisoners had never been taken in Execution, Any thing in this Act, or any Law, Statute, Ordinance or Usage to the contrary in any wise notwithstanding.

The Penalty for a prisoner to swear falsly.; 5 Eliz.

Provided also, and be it further Enacted by the Authority aforesaid, That if at any time within seven years after the taking of the said Oath, the said Prisoner or Prisoners shall upon any Indictment or Indictments, be convicted by his or their own confession, or by Verdict of twelve men, of false swearing in any point or Article contained in the said Oath, as he or they shall or may be by force of this Act, Then such Prisoner or Prisoners so convicted as aforesaid, shall suffer all such pains and forfeitures, as by the Statute of Quinto of Queen Elizabeth are to be inflicted upon any person convicted of wilful perjury: And also the said Court or Courts by which he or they were discharged, shall award a Capias ad satisfaciend' infinite, or other Proces directed to any Sheriff or Sheriffs, for the apprehending of the said Prisoner; and upon the return of a Cepi Corpus, the said Court shall remand the said Prisoner unto the prison from whence he was dismissed, there to remain in Execution, in such maner and condition as he was before his said inlargement: And then and from thenceforth he shall be adjudged to be in Execution, as fully as if he had never been discharged thereof; and the Execution and Executions upon his Lands, Tenements, Hereditaments, Goods and Chattels, if any such shall happen to be after his or their said discharge out of prison, and before he shall be so remanded, shall stand also good and effectual in Law, Any Law, Custom or Usage to the contrary in any wise notwithstanding.