The Statutes at Large (Ruffhead)/Volume 9/Kirby, Westmorland: Small Debts Act 1764

CAP. XLI.

An Act for the more easy and speedy Recovery of small Debts in the Town and Parish of Kirby in Kendal, in the County of Westmorland.

WHEREAS a great Trade is carried on in the Town and Parish of Kirby in Kendal, in Preamble.the County of Westmorland, and the Inhabitants thereof have of late Years greatly increased : And whereas many poor honest Persons are obliged to contract small Debts within the said Town and Parish, and Limits of the same, and they being frequently rendered unable to pay the said Debts in due Time, their Creditors do often bring Suits and Actions against them for Recovery of the same, and in Consequence thereof their Goods and Effects are seized and sold, or their Persons imprisoned, to the utter Ruin of themselves and Families, the Loss of their Labour to the Publick, and the great Burthen and Charge of the Parish or Township to which they belong. For Remedy whereof, and to the Intent that some other easy and speedy Method may be provided for the Recovery and Payment of small Debts within the said Town and Parish and the Limits thereof; May it please your most Excellent Majesty, that it may be enacted; and 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, That it shall and may be lawful for the Mayor and Recorder, or Deputy Recorder Commissioners Names. of the said Town for the Time being, and Thomas Strickland Esquire, John Shaw, Christopher Wilson, John Thompson, Gilbert Crackenthorp, Thomas Wilson the Younger, Gentlemen ; Thomas Holme Esquire, Richard Fell, Thomas Gibson, George Braithwaite, Benjamin Fletcher, William Baxter, Gentlemen ; William Sympson Esquire, Samuel Gawthrop, Thomas Ashburner, Mathew Bell, Bryan Wilson, Thomas Dodason, Gentlemen ; or any three or more of them, to assemble in the Town's Hall, or some other convenient Place within the said Town of Kirby in Kendal; and they are hereby reflectively impowered and required to meet on Thursday the third Day of May one thousand seven hundred and sixty-four, then and there to act as Commissioners for the hearing and determining of all such Matters of Debt and Detinue as are hereafter mentioned ; which said Commisiioners, or any three or more of them as aforesaid, from Time to Time, shall be and are hereby declared, nominated, constituted, appointed and made a Court of Justice, by the Name of The Court of Requests for the Town and Parish of Kirby in Kendal, in the County of Westmorland, and Limits thereof; and the said Commissioners, or any three or more of them, are hereby authorized, impowered and required to assemble, sit and hold the said Court once in every three Weeks (or oftener if Occasion shall be) from and after the said third Day of May, videlicet, on Thursday in such Week ; and the said Commissioners for the Time being, or hereafter to be appointed for the Purpose aforesaid, or any three or more of them, shall have Power and Authority by virtue of this Act to hear and determine all such Causes as are hereafter mentioned, and to pronounce such Judgment, and to make such Order and Decree, and to award Execution thereupon with Costs against the Body, or against the Goods and Chattles of all and every of the Person or Persons against whom they shall give such Judgment, make such Order or such Decree, as to them shall seem just in Law or Equity, so as no Person or Persons shall remain in Prison upon any Execution for a longer Space than three Calendar Months.

ProvisoII. Provided always, and be it further enacted by the Authority aforesaid, That no Person or Persons whatsoever, except the Persons hereby appointed, or hereafter to be appointed Commissioners for the Purposes aforementioned, shall have any Voice in the said Court of Requests, held or to be held under the Authority of this Act.

Comissioners to assemble at a certain placeIII. And be it further enacted by the Authority aforesaid, That the Commissioners in this Act named, or any six or more of them, shall meet and assemble in the Town's Hall, or some other convenient Place within the said Town of Kirkby in Kendal; and they are hereby athorized and required to assemble as aforesaid on the third Day of May one thousand seven hundred and sixty-five, or at any Time within six Days from the said third Day of May one thousand seven hundred and sixty-five. as the Mayor of the said Town, or any six or more of the said Commissioners for the Time being, shall appoint, then and there to elect, nominate and assign six of the most substantial and discreet Gentlemen, Merchants, Housholders or Inhabitants, Shopkeepers or Tradesmen, residing or inhabiting within the said Town and Parish or the Limits thereof, who shall be Commissioners for the Purposes in this Act before mentioned, in the Room, Place or Stead of the six last To be chosen in Rotation named by this Act; and that on the third Day of May one thousand seven hundred and sixty-six, or within six Days after, the Commissioners for the Time being, or six or more of them, on a Day appointed by the Mayor of the said Town for the Time being, or six or more of the said ers, shall assemble as before directed, and shall then and there elect, nominate and assign six more of the Gentlemen, Merchants, Housholders or Inhabitants, Shopkeepers or Tradesmen, residing or inhabiting within the Town and Parish or Limits thereof as aforesaid, who shall be Commission-ers in the Room, Place or Stead of the six secondly named by this Act; and that on the third Day of May one thousand seven hundred and sixty-seven, or within six Days after, six new Commissioners shall be elected in the Room, Place or Stead of the six first named by this Act, in like Manner as is herein before directed ; and from time to time, on the third Day of May in every succeeding Year, or within six Days after, as before appointed, six new Commissioners in the Room, Place or Stead of the six who have served three Years, shall be elected by the Commissioners for the Time being, or six or more of them, as before directed.

Comissoners to elect a ClerkIV. And be it further enacted by the Authority aforesaid, That the Commissioners of the said Court of Requests ,for the Time being, or any six or more of them, shall have full Power and Authority to elect and appoint, and they are hereby authorized and required to elect and appoint, on the third Day of May one thousand seven hundred and sixty-four, or within six Days after, on such Day as shall be appointed by the Mayor of the said Town, or six of the said Commissioners, as before directed, one or more fit Person or Persons, who shall be Clerk or Clerks of the said Court of Requests during the Pleasure of the Commissioners, or the Major Part of them, for the Time being; which said Clerk or Clerks, or one of them, his or their Deputy or Deputies, shall and they are hereby impowered and required to issue out and register all Summonses, Warrants, Precepts, Acts, Orders, Decrees, Judgments, Attachments, and Proceedings of the said Court, and shall keep proper Books, wherein shall be entered and registered all Acts, Orders and Proceedings of the same Court: And the said Commissioners, or any six or more of them, for the Time being, shall also at the same Time nominate and assign two or more proper Persons to be Officers or Ministers of the said Court of Requests, to execute Summonses, Warrants, Precepts, Orders, Decrees, Attachments, and other Procedes of the said Court ; which said Officers shall be and continue Officers or Ministers of the said Court during the Pleasure of the Commissioners, or the major Part of them, for the Time being; and which said Clerk or Clerks, his or their Deputy or Deputies, Officers or Ministers, shall take an Oath before the said Commissioners, or any three or more of them, well and truly to execute their said Offices ; which said Oath the said Commissioners for the Time being, or any three or more of them, are hereby authorized and impowered to administer

Comissioner to issue a CapiasV. And be it further enacted by the Authority aforesaid, That in any Case where the faid Commissioners, or any three or more of them as aforesaid, shall have made any Order or Decree for the Payment of Money, it shall and may be lawful for the Clerk or Clerks of the said Court of Requests, or any of them, their or any of their sufficient Deputy or Deputies, at the Prayer of the Party or Parties, his or their Agent or Agents, prosecuting such Order or Decree for the Payment of Money, to issue a Precept under his or their Hands and Seals, in the Name of a Fieri facias, or Capias ad Satisfaciendum ; which Precept shall be directed to such Officer or Officers as shall be by the said Commissioners, or any six or more of them for the Time being, appointed to execute the same; who is and are hereby authorized and required to levy, or cause to be levied, the Sum or Sums of Money mentioned in such Precept, in the same Manner as any Sheriff may levy Money by virtue of any Writ of Fieri facias, or Capias ad Satisfaciendum, issuing out of any of his Majesty's Courts of Record at Westminster : Penalty on Persons refusing to obey Supoena's at the coutyVI. And be it further enacted by the Authority aforesaid, That in Case any Person or Persons residing within the said Town and Parish, who shall be duly served with a Subpoena or Summons to be issued by the said Clerk of the Court of Requests, at a Time and Place in such Subpoena or Summons mentioned, to give Evidence on Behalf of any Plaintiff or Defendant, shall neglect or refuse to appear pursuant to such Subpoena or Summons, and Proof being made of the Service of such Subpoena or Summons, and no cause of Absence being shewn to the Satisfaction of the Commissioners present at the Court to which such Persons shall be by such Subpoena or Summons required to appear, and Oath being made before the same Commissioners by the Party or Parties at whose Instance, or on whose Behalf, such Subpoena or Summons issued, that the Person or Persons served therewith was or were a material Witnel's or Witnesses for such Party or Parties, it shall and may be lawful to and for the said Commissioners, or any three or more of them, assembled in such Court, and being a Majority of them, to impose a Fine not exceeding fifty Shillings, nor less than five Shillings, to be levied by Distrefs and Sale of the Offender's Goods, by Warrant under the Hands and Seals of the said Commssioners, or any three or more of them, rendering the Overplus, if any, to such Offender, the Charges of such Disstress and Sale being first deducted ; which Fine, when paid or levied, shall be paid over to the Party or Parties at whose Instance, or on whose Behalf, such Supoena or Summons issued.

Creditors may sue for dents under 40sVII. And be it further enacted by the Authority aforesaid, That from and after the said third Day of May one thousand seven hundred and sixty-four, or from and after the Meeting appointed to be held within six Days after, by the Mayor of the said Town, or six or more of the said Commissioners for the Time being, as before directed, it shall and may be lawful to and for any Person or Persons, whether resiant or not resiant in the said Town and Parish of Kirkby in Kendal, or the Limits of the same, who now or hereafter shall or may have any Debt or Debts, Thing or Things, due or owing, or belonging unto him or them, in his, her or their own Right, or as Executor or Administrator, Guardian or Truftee, for or to any Person or Persons whatsoever, not amounting to or of the Value of the Sum forty Shillings, by any Person or Persons whatsoever, as well Attornies as others, rending, inhabiting or seeking a Livelihood in, or trading to or within the said Town and Parish of Kirkby in Kendal, or the Limits of the same, to apply to the Clerk or Clerks of the said Court of Requests, or their sufficient Deputy or Deputies, who shall cause such Person or Persons to be warned or summoned by the said Officer or Officers as asorefaid, who is or are hereby appointed, authorized and required, to execute all Warrants, Precepts and Processes of the said Court of Requests, by personal Service on the Party or Parties, or by Writing left at the Dwelling-house, Place of Abode, or other Lodging, or at the Stall or Shop of such Person or Persons, within the said Town and Parish of Klrkby in Kendal, or Limits of the same, to appear before the Commissioners of the said Court, to be held in the Town's Hall of the same Town, or other Place to be provided as aforesaid : And the said Commissioners, or any three or more of them, shall, after such Summons as aforesaid, have full Power and Authority, by virtue of this Act, to make, or cause to be made, such Acts, Order or Orders, Decrees, Judgments and Proceedings, between the Parties-touching such Debt or other Things, not amounting originally to the Sum or Value of forty Shillings, as they shall find to stand with Equity and good Conscience ; and all such Acts, Order and Orders, Decrees, Judgments and Proceedings, hall be entered and registered in a Book or Books to be kept for that Purpose by the Clerk or Clerks of the said Court, or his or their sufficient Deputy or Deputies, and shall be observed, performed and kept in all Parts, as well by the Plaintiffs as by the Debtors or Defendants respectively.

Comissioners to administer OathsVIII. And, for the better Discovery of the Truth, and the more solemn Determination of Matters and Causes which shall be brought and Depending in the said Court intended to be established by this Act; Be it further enacted by the Authority aforesaid, That it shall and may be lawful to and for the said Commissioners for the Time being, or any three or more of them, to administer an Oath to the Plaintiff or Plaintiffs, Defendant or Defendants, and to such Witness or Witnesses as shall be produced by each Party, and also to all or any the Officers of the said Court, and to all other Persons whatsoever, for or concerning any Business relating thereto, if the said Commissioners, or any three or more of them, shall think it meet.

Penalty on Insulting the ComissionersIX. And, for the more effectual Establifhment of the said Court, and that the Commissioners may be vested with a proper authority, and be free and exempt from Insult and Abuse ; Be it further enacted by the Authority aforesaid, That if any Person or Persons shall contemptuously or wilfully insult or abuse all or any of the Commissioners, or other Officers of the said Court for the time being, during their sitting in the said Court, or going to or from the said Court, or shall interrupt or obstruct the Proceedings of the said Court, it shall and may be lawful for the summoning Officer of the said Court, with or without the Assistance of any other Person or Persons, by Order of the said Commissioners, or any three or more of them, being a Majority of the said Court, to take such Offender or Offenders into Custody, and carry him, her or them before the Mayor, or any other Justice or Justices of the Peace for the said Town or County of Westmorland ; and upon the Insult proved, or other Misbehaviour as aforesaid being duly proved by the Oath or Oaths of one or more credible Witness or Witnesses, the said Mayor, Justice or Justices, shall punish every such Offender, either by Fine not exceeding forty Shillings, nor under five Shillings, upon any one Person for any one Offence, to be levied by Distress and Sale of the Goods of such Offender, or Imprisonment in the Common Gaol of the said Town for any Time not exceeding two Months ; and where the said Mayor or Justices shall have imposed a Fine upon such Offender, and there shall not be found sufficient Goods of such Offender whereon such Fine can be levied, the said Mayor, Justice or Justices, shall and may, by Warrant under his or their Hand and Seal, or Hands and Seals, commit the said Offender to the Common Gaol of the said Town, there to remain for any Space of Time not exceeding two Months. or beign guilty of PerjuryX. And be it further enacted by the Authority aforesaid, That in Case any Person or Persons shall make Oath or give Evidence in any Cause depending in the said Court of Requests, whereby he, jury. she or they do or shall commit any wilful or corrupt Perjury, and shall thereof be duly convicted according to Law, then every such Person or Persons, convicted of wilful and corrupt Perjury as aforesaid, shall incur and suffer the like Pains and Penalties to which any other Person or Persons convicted of wilful and corrupt Perjury is and are liable by the Laws and Statutes of this Realm.

Comissioners to take an OathXI. And be it further enacted by the Authority aforesaid, That no Person or Persons shall be capable of acting as a Commissioner or Commissioners in the Execution of the Powers given by this Act:, until such Time as he or they shall have respectively taken an Oath to the Effect following :

I A. B. do swear, That I will faithfully, impartially, and honestly, according to the best of my Judgment, hear and determine such Matters and Things as shalll be brought before me, by virtue of an Act passed in the fourth Year of the Reign of his Majesty King George the Third, intituled, An Act for the more easy and speedy Recovery of small Debts in the Town and Parish of Kirkby 4 in Kendal, in the County of Westmorland, without Favour or Affection to either Party.

So help me God.

Which Oath the said Clerk or Clerks for the time being, his or their Deputy or Deputies, is or are hereby impowered and required to administer in open Court; .a Memorial whereof shall be entered in the Register of the said Court.

Fees to be taken.XII. And be it further enacted by the Authority aforesaid, That the several Fees herein after limited, appointed, specified and expressed, and no other Fee or lees, in all or may be taken for the respective Services of the said Clerks, Officers, or Ministers of the said Court of Requests ; that is to say,

£ s d
For isuing out every Summons, to the Clerk 0 0 4
To the Officer, for Service 0 0 6
For the calling every Defendant before the Court, to the Clerk 0 0 2
For every Hearing, to the Clerk 0 0 6
For every Order upon Hearing, and Entry thereof, to the Clerk 0 0 3
To the Officer 0 0 3
For an Execution, to the Clerk 0 0 8
To the Officer, for Service 0 1 0
For paying Money into Court, to the Clerk 0 0 6
For every Person committed for insulting the Court, to the Clerk 0 0 6
To the Officer 0 0 6
For acknowledging Satisfaction in full, to the Clerk 0 0 6
For every Search, to the Clerk 0 0 2
For a Nonsuit, on the Plaintiff's not appearing, to the Clerk 0 0 4
To every Attorney retained by Plaintiff or Defendant 0 0 6
To every Attorney appearing for Plaintiff or Defendant, in Court 0 1 0

A Table of which Fees shall be hung up by the Clerk or Clerks of the said Court in some publick or most conspicuous Part or Room of the Town's Hall within the said Town of Kirkby in Kendal, or other Place where the said Commissioners shall meet for the Purposes aforesaid, to the End that all Persons may, at all Times, fee and read the same.

5l. Penalty on demanding greater Fees. XIII. And be it further enacted by the Authority aforesaid, That if the said Clerk or Clerks, his or their Deputy or Deputies, or any other Officer, Person or Persons to be employed by virtue of this Act, shall take or demand any greater or other Fee or Fees than as above mentioned, that then and upon Complaint made to the said Commissioners, fitting in Court, of the said Offence or Offences, such Complaint being duly proved, upon the Oath of one or more credible Witness or Witnesses against him or them so offending as aforesaid, the said Commissioners, or a Majority of them, then fitting, shall proceed to punish such Person or Persons fo offending as aforefaid, by Fine, not exceeding the Sum of five Pounds for any Offence, to be levied by Distress and Sale of the Offenders Goods and Chatties, by Warrant under the Hands and Seals of the said Commissioners, or any three or more of them, rendering to the Owner the Overplus, if any, after the Charges of the said Distress and Sale are deducted.

Debts exceptedXIV. Provided always, That this Act, or any thing herein contained, shall not extend to any Debt or Detinue for any Rent upon any Lease of any Lands, Tenements or Hereditaments, or any other real Contract where the Freehold doth come in Question, nor to any Debt which shall arise by reason of any cause concerning Testaments or Matrimony, or any thing concerning or properly belonging to the Ecclesiastical Court, nor to any Matter, Cause or Thing within the Office, Cognizance or Commission of a Justice of the Peace ; albeit the Debt, Value or Damages, shall be under the Sum of forty Shillings ; any thing herein before contained to the contrary notwithstanding

Plaintiffs not appearing,&c. Comissioners may award Costs to Defendant XV. And be it further enacted, by the Authority aforesaid, That if upon the Day of Return of &c. Commissioners may the Summons, or at any Continuation or Adjournment of the said Court, the Plaintiff or Plaintiffs shall not appear, or appearing shall not make Proof of his, her or their Demand, to the Satisfaction of the Court, but become nonsuited, it shall and may be lawful to and for the said Commissioners, or any three or more of them, being a Majority of the said Court, to award to the Defendant or Defendants reasonable Costs, and to order and oblige the Plaintiff or Plaintiffs to pay the same, by such Ways and Means as are herein provided for the Recovery of Debts ordered and decreed by the said Court.

If Debtors refute to appear, Comissioners may bear and determine the Cause XVI. And be it further enacted by the Authority aforesaid, That if such Debtor or Debtors, who shall have been duly summoned as aforesaid, shall not appear before such Court at the Time and hear and determine the place mentioned in the said Summons, that then it shall and may be lawful to and for the said Commissioners, or any three or more of them foaliembled, being a Majority of the said Court, after due Proof upon Oath made of the Service of the said Summons in Manner aforesaid, to hear the Cause on the Part of the Plaintiff or Plaintiffs only, and to make such Order, Decree, or Judgment, and to award reasonable Costs of Suit, as to them shall seem most agreeable to Equity and good Conscience, and to oblige the Debtor or Debtors, to pay the same, by such Ways and Means as are herein provided for the Recovery of Debts ordered and decreed by the said Court.

Application of PenaltiesXVII. And be it further enabled by the Authority aforesaid, That all such Fine or Fines as are Application of Penalties, directed to be imposed, paid or levied by virtue of this Act, sall be laid out, disposed of, or applied, to such Use or Uses as the Commissioners for the Time being, or the Majority of them, shall direct and appoint. Clerk to ajourn the CourtXVIII. And be it further enacted by the Authority aforesaid, That in case three or more of the Clerk to adjourn the Commissioners, appointed or to be appointed by virtue of this Act, shall neglect or refuse to assemble on any of the Days appointed for holding the said Court, it shall and may be lawful for the Clerk or Clerks of the laid Court for the Time being, to adjourn the said Court to some other convenient Opportunity, within one Week from the Time in which the said Court ought to have been held ; and in the mean Time, by Direction of one or more Juftice or Justices of the Peace residing within the said Town and Parish, under his and their Hands and Seals, to warn the said Commissioners, or three or more them, to appear on the Day so fixed by the said Clerk or Clerks ; which said Commissioners and every of them, so warned or summoned, as aforesaid (and at the Time of such Summons or Notice, residing within the said Town and Parish of Kirkby in Kendal) neglecting or refusing to appear on the Day appointed by the Clerk or Clerks of the said Court as aforesaid, shall lose and forfeit the Sum of five Shillings, which, on Non payment, shall be levied by Distress and Sale of the Offenders Goods and Chattles, by virtue of a Warrant or Warrants under the Hands and Seals of one or more Justice or Justices of the Peace for the said Town or County of Westmorland such Justice or Justices not being a Commissioner or Commissioners of the said Court ; which said Fine or Fines shall be laid out, disposed of and applied, as is herein before directed by this Act.

Debts recoverable in this court not to be sued ofr in any other court/XIX. And be it further enacted by the Authority aforesaid, That no Action or Suit for any Debt, Debts recoverable in this not amounting to forty Shillings, and recoverable by virtue of this Act in the said Court of Requests, Court shall be brought against any Person or Persons in any other Court whatsoever ; and no Suit which shall be commenced in the said Court of Requests in pursuance of this Act, nor any Proceedings therein, shall or may be removed into any superior Court ; but the same shall be final and conclusive to all Intents and Purposes. Proceedings not removable by CetioraiXX. And be it further enabled by the Authority aforesaid, That no Order, Decree or other Proceedings of the said Commissioners, in the said Court of Requests, shall be removed or removeable by Certiorari, or any other Writ or Process whatsoever, into any of his Majesty's Courts of Record at Wesminster ; and in case any Person or Persons shall be aggrieved by any Order, Decree, Determination or Proceeding of the said Commissioners in the said Court of Requests, contrary to the true Intent and Meaning of this Act, or any of the Clerk or Clerks, Officer or Officers thereto belonging, such Person or Persons aggrieved as aforesaid, shall and may recover full Satisfaction for the special Damage in an Action upon the Case. Limitation of ActionsXXI. And be it further enacted by the Authority aforesaid, That if any Action or Suit shall be Limitation of Actions. brought or commenced against any Person or Persons, for any Matter or Thing done or to be done in pursuance of this Act, then, and in such Case, such Action and Suit shall be brought and commenced within three Calendar Months next after the Fact committed, and not afterwards ; and the Defendant or Defendants in such Action or Suit shall and may plead the General Issue, and give this General Issue. Act and the Special Matter in Evidence, at any Trial to be had thereon; and if the Plaintiff or Plaintiffs shall become nonsuited, or discontinue his or their Action or Actions, Suit or Suits ; or if, upon Verdict or Demurrer, Judgment shall be given against the Plaintiff or Plaintiffs, the Defendant or Defendants shall and may recover Treble Costs, and have such Remedy for the same as Treble Costs, any Defendant or Defendants hath or have in any other Cases by Law.Treble Costs.

Publick ActsXXII. And be it further enacted by the Authority aforesaid, That this Act shall be deemed, adjudged and taken to be a Publick Act ; and be judicially taken Notice of as such, by all Judges, Justices, and all other Persons whatsoever, without specially pleading the same.

FINIS.