PROPOSALS FOR Reformation OF Abuses and Subtleties in Practice against the LAW and in Scandal of it.  
By William Gery, Esq; of Grays-Inn.  
London, Printed for William Shears, at his Shop in the New Exchange, 1659.   

Proposals for Reformation of Abuses, and Subtleties in Practice against the Law, and in Scandal of it.  
THe Writs and Processes ordained by Law, are truly intended for remedies, redress of wrongs, and oppressions.  
The Statute of 25 Ed. 3. c. 17. which gave the Capias in debt, detinu, assumpsit, which before that Law was not, by the common Law: For no man's person might be arrested for such Causes, nor taken in Execution, the lands and chattels of the Debtor, were only liable to execution.  
The Statute intended doubtless a good use of the Capias, for a more speedy way to compel payment of debts; and not to be made a stolen for wrong and oppression as now it is.  
The Statute is abused in this, that men now adays are by force of the Capias and Latitat Arrested and imprisoned upon great Actions, for pretended great sums of money, when in truth, there is no debt at all due, or any just cause of Action.  
And commonly upon great Actions, when little is due, both which are great oppressions, and tend to the ruin of the Person, and family, in dishonour of the law, and scandal of justice: and no remedy by the law for so doing, nor equivalent damage. Will you vex your brother, that would live in peace by you? Revenge yourself upon your Neighbour? Will you ruin him in his estate or good name? Arrest him, right or wrong, this will either bend him to your ends, or break him in defence of himself; countenancing thereby the greatest oppression and injustice by colour of Justice in the use of Writs & Process of law.  

The inconvenience that are by Arrests.  
1 Such Arrests upon feigned actions, or great actions, for small debts puts the party to an incapacity of Bail, whereas if the true cause of the action were known, bail might be procured.  
2 It draws present great charges and expenses upon the party arrested, to the undoing of the party, and support only of the riotous expenses of under Sheriffs, Bailiffs, Sergeants, and their adherents, who live upon the spoil, and ruin of other men, and to the dishonour of God.  
3 It exposeth the party Arrested to base and vile usage.  
4 It impoverisheth the prisoner, and disables him to pay.  
5 It deprives the party Arrested of the means of livelihood, and use of his Trade or Art to live by, for the support of himself, his relations, family, Wife and Children, and payment of his debts.  
6 The words of the Writ of Capias, are but ad respond●ndum, and the Writ of Debt is but debet ut dicit: In the first place, the party Arrested is undone by imprisonment, before he comes to Answer; and in the other case, upon a supposal, before it be known, whether a debtor or no debtor.  
7 There is great danger by Arrests, manslaughter often happening by the violent assault of the Sheriff's Bailiffs, and Sergeants in their Arrests.  
8 Imprisonment pay no debts, the Keepers and Jailours of prisons devour all by excessive fees.  
9 Imprisonment destroys industry, corrupts manners, and nourisheth idleness.  
10 By imprisonment the Commonwealth suffers damage, men in prison being buried alive, whose abilities of mind and bodies might be serviceable to the public, in times both of Peace and War, if at liberty.  
Added to these Reasons, the excessive charge incident to these Arrests, the prisoner being kept at the Bailiffs house, charges run upon him ten or twenty shillings a day and night, for Chamber-rent and expenses, which they draw upon the prisoner without mercy. And if the prisoner be carried to Newgate for want of means to keep himself at the Bailiffs or Sergeants house) so long as the prisoner lies there, the Creditor is not bound to Declare. And if not able to remove himself by Habeas Corpus, which is very chargeable to do, the very Writ of Habeas Corpus, being 11 4d. or thereabout, and nigh 4l. more according to the number of the Actions he lies under: And if not able to remove himself, he lies there a prisoner at the will of him that Arrested him, or put in Bail, which is not easily to be done, when the Action is great, and the true cause of the Action not known; And if the prisoner so Arrested be able to remove himself to the Upper Bench, there must he lie three Terms before the pretended Creditor is bound to Declare; and in the mean while, the party Arrested is unhappily undone by such imprisonment, and his Wise and Children; And for this so great oppression, it may be, he may get twenty shillings costs for want of the Declaration, a satisfaction in ludibrium Justitiae, that is, in mockery of Justice. The case is alike if removed by Habeas Corpus into the Fleet  
And so if the party be Arrested in any Corporation, and if in the Country, the under Sheriffs will sit two or three Habeas Corpus before they will bring up the prisoner; and until he hath drawn from the prisoner, considerable sums for the charge of his remove.  
And if it so happen the under Sheriff to be amerced, for not returning his Writs, such amerciaments are pro formâ tantum, not one of twenty estreated, or if estreated, easily compounded.   

As are the inconveniences by Arrest, the like are if the party prosecutor proceed by Outlary upon the Capias.  
1 A Man may be Outlawed upon any pretence of Debt detinue, Assumpsit, or other pretence, whether true or false, and never know of it.  
2 The person so Outlawed may die outlawed, which is of ill consequence to such person.  
3 The Outlary is chargeable to reverse.  
4 The forfeiture by the Outlary goes to the Commonwealth without benefit to the party prosecutor, whose satisfaction the law intends where there is a just debt; but where it is otherwise, the law is abused, and the party sued oppressed.  
5 The parties Outlawed are without any remedy against the prosecutor, because he hath the law on his side.  
6 When men's estates come to be seized on in cases of Outlary, the under Sheriff's Bailiffs and their followers lick their fingers, and by undervaluing of the Goods and Chattels of the pretended Debtor, he, his Wife and Children are undone, havoc being made of the estate.  
7 The freehold is liable to seizure upon the Outlawry returned, which if seized, cannot be reversed, but by pleading, which is very chargeable to do.  
8 The party Outlawed is liable to be sued, but disabled to sue for his debts or for his own right.  
When therefore these prosecutions by Arrest of the Body, or by exigent shall be upon feigned, fraudulent and false ground, how great is the wrongs, oppressions, and injustice: And no remedy or damages equivalent because done by Process of the Law.   

Remedies proposed for redress of the Inconveniences aforesaid.  
1 THat in all cases of Debt, detinue, Assumpsits, and the like, there be no arrest, but a Summons, as before the said Statute of 25. E. 3. c. 17. And such Summons to be served by the party prosecutor, either upon the party debtor, or left at his place of dwelling, as is the Subpena; and upon Affidavit made of such service, the Sheriff to make his return.  
This will prevent the fraud of under-Sheriffs and Bailiffs, by whose shifts and delays, in serving and execution of Process, the people are abused and wronged and Justice delayed.  
This will avoid the extraordinary charge that men are put unto by under-Sheriffs, their Bailiffs, and Officers, to get their Process and Writs served, especially when it comes to execution.   

And for avoiding of feigned Actions, or Arrests upon greater Actions, where the Debt or duty is but small.  
IT is proposed that all contracts hereafter made, be by specialty, if they exceed forty shillings, which are properly triable in the County Court or Court Baron, and ought not to be from thence removed, as cunningly they are, by the Attorneys, to the great vexation of the people, and abuse of the law, and the Attorneys that do this not discountenanced.  
This course of giving of specialty upon Contracts, will greatly prevent that sin of Perjury, too commonly practised: It was the observation of the Lord Chancellor Egerton, that a contract by parole, was a contract by perjury, and in anno 40, Elizabeth ter. Tr. he openly declared in Court, that he would give no relief, to him that claimed a Lease by Parol. And in 1. Jacobi Regis, that it were good for the Commonwealth, that no promises by parol, proved by witness, were allowed, considering the plenty of witnesses now adays, that were Testes Diabolici, qui magis fame quam fama moventer.  
And Judge, Doddridges opinion in Slades case, Cook 4. part fol: 92: is, that the action upon the case is a feigned action, and devised in deceit of the law:  
1 A Debt created by specialty, will prevent multiplicity of suits, which are introduced by parole Contracts, they being ten for one:  
2 The action upon a speciality, is a certain action, the action upon the case upon paroll contract doubtful and uncertain:  
3 The wager of law is taken from the party for his defence, in the action upon the case, which in the action of debt is saved to him, where the debt is not by specialty:  
4 The action upon the case, is an action of surprise, men's words being often wrested beyond the true intent of the party, and there a home-swearer carries the cause:  
5 In contracts by specialty there is apparent truth in contracts by paroll, truth is obscure, and the discovery dangerous and dubious.  
6 Contracts by specialty have a certainty in them, so have not contracts by paroll.  
7 Contracts by specialty are more certain and safe for a Jury to ground their Verdict upon than contracts by paroll.  
8 In contracts by paroll where perjury is committed, commonly the witnesses produced are never more to be heard of, and the party thereby injured, left without remedy by such swearing, against such swearer, it is otherwise in cases of contracts by specialty, for therein there is more assurance of remedy, than in contracts by words, such persons being more responsable to Justice in case of miscarriage.  
Excepted always out of these Proposals, the Contracts and deal between Merchant and Merchants, and of their Factours, Servants and Agents, as by the Statute of anno 21. King James is provided.  
FINIS.