No arrest in civil cases is to be made with violence, by breaking open doors, unless when regular possession shall be recovered of any house, and the defendant happens to be in such House. Therefore bailiffs enter at their peril, and the defendant is justifiable in putting him to death in the very instant he ATTEMPTS to raise a latch; for it would be absurd to suppose the laws will protect a man in the commission of an unlawful act.
Any bailiff MALICIOUSLY arresting any person, where no cause of action is, shall suffer six months imprisonment, and shall pay treble damages, with a forfeiture of 10l. before he is discharged.
No bailiff shall take more fees than what the law allows upon pain of incurring a penalty of 40l. with treble damages, to the party aggrieved.
Attachment lies against him for executing a writ OPPRESSIVELY by Force, Extortion, or in any CORRUPT manner.
But our laws have originally considered sheriffs only ostensible for the due execution of writs, and therefore take little notice of their deputies, but make him answerable for THEIR acts in a ministerial capacity; and equitably so, for the law supposes him capable of avoiding evils of this nature by chusing proper persons.
We will now consider what provision the laws have made against Barratry and other iniquitous practices of pettyfogging attornies, from whom all the other grievances, either positively or negatively, spring. My lord Coke thus defines a Barrator; that he is a common mover and maintainer of suits in disturbance of the peace, and in taking and detaining the possession of houses, lands, and goods by false inventions, and therefore the indictment against him OUGHT to be in these words; viz. that he is, Communious Malefactor, Calumniator, & Seminator Litium, & Discordiarum inter Vicinos suos & Paces Regis Perturbator, &c. &c. which is saying, that a barrator or pettyfogger is the most dangerous oppressor in the law; for he oppresseth the innocent under colour of that law which was made to protect them from oppression; and yet we have 500 of these barrators or pettyfoggers in the courts at Westminster every term, in the full exercise of their depredations, notwithstanding the laws expressly pronounce the following sentence against them; viz. “that they shall be rendered incapable of acting as attornies.”
“Attornies must produce receipts from under the hands of council, or other persons receiving fees, if requested by their clients, or they shall not be allowed them; and attornies must give in to their clients a true bill, under their own hand-writing, of all such fees, &c. one month before any action shall be brought against their clients for the same.
“No attorney shall delay his client’s suit from any advantage to himself, or demand more than his due fees and disbursements, under pain of a fine and disability to act.
“If any attorney shall suffer any other person to prosecute any suit in his name, he shall forfeit 20l.
“If any attorney’s bill, upon taxation, be reduced a SIXTH part, he shall pay a penalty of 50l. and be disabled from acting as an attorney.
“If any who have been convicted of perjury, forgery, &c. shall practise as an attorney or solicitor in any suit or action, the judge, where such action shall be brought, hath power to transport the offender for seven years, under such pains and penalties as other felons.
“If any attorney shall procure a blank warrant from any sheriff, with intent to arrest, before a writ is delivered, he shall be expelled and punished.
“Every attorney must enter and file a warrant of attorney in the suit he is employed to prosecute, under the penalty of 10l.
“The plaintiff’s attorney must file his in the term he declares, and the defendants his in the term he appears.
“And no attorney shall appear or plead a plea, without a warrant from his client.”
Notwithstanding our laws abound with these and many more excellent provisions in behalf of the subjects at large, by prescribing limits to the power, and inforcing the duty, of attornies, we daily feel their inefficiency to protect our liberty and property, a proof that human foresight is unequal to the task of guarding against the invention and chicanery of necessitous villany.
However, as the evils arise not so much from the Defect of our laws as from a Breach of them, there is a firm bottom to proceed on, and from your insatiable hatred to oppression, we may hope to see some wholesome regulations in the sheriffs department. The judicious choice of Mr. Reynolds, as under-sheriff, will greatly facilitate a remedy to these growing complaints; from whom, as a man and friend to the community, we have every thing to hope—as an able lawyer, nothing to doubt.
Lock-up-houses, EMPHATICALLY called spunging-houses, were originally instituted for the mutual benefit and advantage of debtor and creditor, as a kind of interlocutory residence or respite from a prison, which gave to the former a lotted time to procure sureties for his appearance, raise money or friends to pay the debt, or otherwise settle the matter; with like opportunity to the latter to consider of and consult his own interest. Thus far it became a humane and equitable institution; but, O Tempora! O Mores! how subverted are the lock-up-houses of this day: the instant a debtor enters one of these confines, a temporary hell presents itself. He is hemmed in and surrounded by a set of wretches, whose daily bread depends on the misfortunes of others; on the one side he hears pettyfoggers reading lectures on the Theory of vice, on the other, bailiffs urging the necessity of its Practice; before him are raigned the unhappy pupils, industriously improving on their infernal precepts, and rendering fraud, perjury, rapine, and every degree of robbery, as mechanical as shoe-making; behind stands a female Anodyne, bloated with all the infections purged from her sex, her heart ulcerated with vice, and her face with brandy, railing at the cruelty of creditors, and piously banding off comfort to his misfortunes, by holding out advice pernicious as Eve’s apple, a taste of which would entail misery on his whole posterity.