Legal and other reasons (with all humility) presented to His most Excellent Majesty, King Charles II. and to both his Honorable Houses of Parliament, why the subjects of England, should not be imprisoned for debt or damages, or any thing thereunto relating

A SVMMARY or COMPENDIVM OF The ACT before-mentioned, FOR PRISONERS That will part with all their ESTATES, both Real and Personal, for the Satisfaction of their CREDITORS.

THat it may be lawful for the Lord Chancellor, or Lord Keeper for the time being (upon Request to him by such Prisoner to be made) to issue out Commissions, to be di∣rected to such Persons as shall be thought fit, authorizing them, (or any three or more of them) in their re∣spective Counties) to Summon and send for the Credi∣tors of all such person and persons, as now is, or are in prison (or at any time during this Session of Parliament) shall be in Prison in any of the Prisons in England, and Wales, upon any Action or Actions upon Measne Process for Debt, Accounts or Trespass; which actions by a prose∣cution of Law, may come to be Judgements for Debts or Damages; or that have Judgements entered of Record against them, or charged in Executi∣on, or imprisoned upon Attachments for Debts or upon Outlawries before or after Judge∣ments for Debt; or upon Statutes, Recognizances, Extents, or upon any other Action, or any other Process whatsoever, issuing out of any Court of Law, or Equity, for the cause of Debt or Damages or Costs, or for Money ordered or decreed in any Court of Equity, at the suit of any person or persons whatsoever, or upon or by reason of any Process issuing upon them, any or either of them respectively; as well those persons, for whose Debt and Debts the said Prisoner and Prisoners is, and are imprisoned; as all other person and persons, to whom such Prisoner and Prisoners is, or stands indebted: As also to send for such Prisoner or Prisoners, by Summons, to come before them; which Summons the Prison-Keepers are to obey, upon the penalty of 100 l. And (at the same time) to certify the Cause and Causes of such Prisoners imprisonment. And the Commissioners (after the exami∣nation of such Prisoner) are to Remand him to Prison.

That if such Creditor be dead, an Infant, or of Non-sane memory, then to summon the Executors, Administrators, or Guardian of such Creditor; Requiring also such Prison-keeper, to bring such Prisoner to such place as the Commissioners shall appoint, where the said Commissioners shal Treat with such Creditors, touching their Debts; that so a pro∣portionable distribution may be to them made, of the said Prisoners Estate (the Apparell of such Prisoner, and also necessaries for his Trade excepted out of his personal Estate.)

That if any of the Creditors shall refuse or neglect to come before the said Com∣missioners (or some for them,) having had twenty days notice inclusive and Oath made thereof) the said Commissioners to be impowered to finish such alottment, such Creditors absence notwithstanding.

That the said Commissioners be impowered to examine the said Prisoner upon Oath, for the discovery of his Estate, and to send for such Books, Evidences, and Writings, as they think fit, and to examine Witnesses upon Oath, to the end, that they may make a true discovery of the Prisoners Estate, which is so to be done, within six Kalender months after their first sitting, or sooner if it may be.

That the said Commissioners be authorized to apportion all such Estate amongst the Creditors proportionably, by sale of the Estate, or otherwise; which sale, or other dis∣position shall be good against the Prisoner's Heirs, Executors, &c. and to be divided within three months after the end of the said six months (or sooner if it can be done) And that the said Commissioners be impowered to assign the Debts and Estate of such Prisoner to such Persons as they shall think fit, for the use of the Creditors, a twentieth part (so to be sold) to be allotted to the Prisoner, for present maintainance, and for some small foundation for future living.

That Mortgages shall be first payed by the Estate so Mortgaged.

That (after the apportioning of such Prisoners Estate) the Prisoner shall be discharged; and that such part of the Prisoners Estate as shall be allotted to the Creditors shall be in full satisfaction of such Creditors Debt.

That such Creditors as shall not appear before the said Commissioners (or some for them) before such Divident be made (having had such notice as aforesaid, and Oath made thereof) shall be utterly, and for ever, precluded from the recovering of his said Debt, against the said Prisoner his Executors, &c.

That a Writing under the Hands and Seals of the Commissioners (expressing the dis∣charge of such Prisoner) shall be a full Discharge to him against his Creditors, and another Writing, (signifying such Prisoners Discharge) directed to the Prison-keeper shall be a sufficient Warrant for him to discharge such Prisoner; which he is to do within two days, without payment of any Fees; but the Prisoners Chamber-rent is to be paid out of the Estate so to be sold, or so much thereof as the Commissioners shall think fit.

That if any Action of Escape shall be brought against the Prison-keeper (for the dis∣charging of such Prisoner) he may plead the general Issue, and give this Act in Evi∣dence; and if the Plaintiff shall be Non-suted, or a Verdict shall pass against him, he is to pay the Defendant double Costs to be Taxed by the Court, where the Action shall be brought.

That for the expediting the sale, and other the disposition of such Prisoners Estate (in order to the satisfaction of his Creditors) without whose personal aid and assistance, it will be of far the greater difficulty for the Commissioners to expedite and execute the same) it be lawful for the Lord Chancellor or Lord Keeper (for the time being) from, and immediately after the remanding of such Prisoner to Prison by the said Commission∣ers) to grant unto such Prisoner a Habeas Corpus, or Habeas Corpus's for such length of time, as he shall think necessary and conveneint in that behalf; to the end that such

Prisoner may be in a condition personally to attend the said Commissioners; and to be otherwise instrumental in giving of a speedy dispatch to the Sale, and Disposal of his Estate, as aforesaid.

Provided, That if any Prisoner shall set forth to the said Commissioners, or to any three, or more of them, as aforesaid, the Debt of any Creditor of his that is beyond the Seas, to be less than in truth the same is, such Prisoner shall thereby forfeit and lose the benefit of this Act, (as to such Creditor, and every such Creditor, his Executors, Administrators and Assigns, making his Debt to appear to be more than such Prisoner shall have declared the same to be before the said Commissioners, such Creditor is hereby impowred and authori∣zed again to proceed and take the said Prisoner in Execution, and thereupon to imprison him, or otherwise to prosecute him at Law, or in Equity, as to him shall seem best; or to indict and prosecute him at the Common Law, for breach of his Oath, or upon any Statute or Statutes made against Perjury: This Act, or any thing herein contained to the contrary thereof in any wise notwithstanding.

Objection.

To these Heads of a Bill, perhaps there may be several Objections: As first, That (in what is here proposed for a Bill) there is no provision, that (in case the Prisoner hap∣pen to have an Estate after he is discharged) that such Estate shall be Subject to his Debts.

Answer.

To which is answered, That the Prisoner (parting with all his Estate voluntarily, it will seem very severe, that he should not be capable of a Legacy, or other Gift from any Friend and Relation, but that it must (of necessity be (upon the matter) devised or given to his Cerditors. Or that he, (who by remaining in prison) could never (in the least) have advantaged his Creditors, yet (being discharged and at liberty) all his labours should be exposed to his Creditors mercy.

Objection.

Secondly, (And which is a very great objection) That by the heads of this Bill (although Mortgages are to be paid first) yet Judgements, Statutes, and Recognizances are thereby but in the same degree with Bonds, and to be paid equally, although the Law gives them a priority in payment.

Answer.

To which it is answered, That (in this case) if a Judgement, Statute or Recog∣nizance, should (according to the rule of Law) be paid before Bonds, then (as this Case is) there cannot be (as it may fall out) a proportionable Divident of the Estate, nor indeed any Divident at all; for one Judgement, Statute or Recognizance may swal∣low up the whole Estate; besides, it is plain, that (by the Statute made against Bankrupts) Judgements, Statutes, and Recognizances, are equally, and proportionably paid with Bonds, and no otherwise; so that (in that case) they are (in pari gradu) with Bonds and o••her Debts; and may much rather so be in this case than in the Statute of Banckrupt, especially considering, that this is not a standing Act, but for the discharge of such only, as are now in Prison, begotten out of the several fatal accidents which have happened in this age more than in any former; by means whereof, many thousands (more then formerly) are now clasp'd, and shut up in prisons.

Objection.

Thirdly▪ That the Proviso, that the Prisoners shall have a twentieth part of his Estate, for his present maintainance, may seem unequal, in regard (as hath been urged) That then a Tradesman (or any other in credit) may get twenty thousand pounds into his hands, and then go into a Prison, and be sure of One thousand pounds. Next, That (in regard his whole Estate will not pay his debts, without abatement) it is not reasonable that he should have a twentieth part.

Answer.

To which it is answered, That if there shall be any one such person as would, or could designedly, (to gain 1000 l.) get twenty thousand pounds into his hands, the which (upon a due and deliberate consideration of the thing) is not easily to be imagined, ever will or can be done) yet the villany of one Man (it is hoped) shall not be put into the Ballance, with the good of many hundreds. Next (it's true) it may seem hard that the Prisoner should have any thing out of his Estate, when all will not pay his debts; and it is equally as hard, and harder, that (after he hath spontaneousl•• ••evested himself of hi•• Estate) he should be turned naked into the World, without any thing at all to give him a present support, or some small foundation for future living.

That if due consideration be had of this intended Act or (if not of this) if care be taken for passing such another Act, as may effectually operate to the same purpose, it will be found to be a great good, and weighty work, although some persons (of whom better things might justly be expected) little regard or consider it; for it is of such consequence, to relieve the oppressed, to study, and effect such works of Piety and Charity, as concerns all the Prisoners and Prisons of England and Wales, that it will (as is hoped) de∣serve some of the oleum & opera, of every good Patriot that loves his Countrey to whom it is seriously recommended, by this (or some such other Act) to perfect a work (al∣though with difficulty and pains) so incumbent upon all person of spacious and publick Souls; especialy weighing, that not any former age hath left a trace, or memory, suitable to the great variety of sufferings as in this.

FINIS.