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Judgments Act 1838

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Judgments Act 1838

1838 CHAPTER 110 1 and 2 Vict

An Act . . .F1 for extending the Remedies of Creditors against the Property of Debtors . . .F1

[16th August 1838]

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Modifications etc. (not altering text)

C1Short title given by Short Titles Act 1896 (c. 14)

C2Preamble not relevant to unrepealed provisions of the Act

Commencement Information

I1Act wholly in force at Royal Assent.

1—10.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F2E+W+S+N.I.

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Amendments (Textual)

11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F3E+W+S+N.I.

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Amendments (Textual)

12 Sheriff empowered to seize money, bank notes, &c.; and to pay money or bank notes to execution creditor; and to sue for amount secured by bills of exchange and other securities. Proviso as to indemnity for sheriff.E+W+S+N.I.

By virtue of any writ of fieri facias to be sued out of any superior or inferior court, or any precept in pursuance thereof, the [F4high sheriff] or other officer having the execution thereof may and shall seize and take any money or bank notes, (whether of the Bank of England, or of any other bank or bankers) and any cheques, bills of exchange, promissory notes, bonds, specialties, or other securities for money, belonging to the person against whose effects such writ of fieri facias shall be sued out; and may and shall pay or deliver to the party suing out such execution any money or bank notes which shall be so seized, or a sufficient part thereof; and may and shall hold any such cheques, bills of exchange, promissory notes, bonds, specialties, or other securities for money as a security or securities for the amount by such writ of fieri facias directed to be levied, or so much thereof as shall not have been otherwise levied and raised; and may sue in the name of such [F4high sheriff] or other officer for the recovery of the sum or sums secured thereby, if and when the time of payment thereof shall have arrived; and the payment to such [F4high sheriff] or other officer by the party liable on any such cheque, bill of exchange, promissory note, bond, specialty, or other security, with or without suit, or the recovery and levying execution against the party so liable, shall discharge him to the extent of such payment, or of such recovery and levy in execution, as the case may be, from his liability on any such cheque, bill of exchange, promissory note, bond, speciality, or other security; and such [F4high sheriff] or other officer may and shall pay over to the party suing out such writ the money so to be recovered, or such part thereof as shall be sufficient to discharge the amount by such writ directed to be levied; and if, after satisfaction of the amount so to be levied, together with sheriff’s poundage and expences, any surplus shall remain in the hands of such [F4high sheriff] or other officer, the same shall be paid to the party against whom such writ shall be so issued; provided that no such [F4high sheriff] or other officer shall be bound to sue any party liable upon any such cheque, bill of exchange, promissory note, bond, specialty, or other security, unless the party suing out such execution shall enter into a bond, with two sufficient sureties, for indemnifying him from all costs and expences to be incurred in the prosecution of such action, or to which he may become liable in consequence thereof, the expence of such bond to be deducted out of any money to be recovered in such action.

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Amendments (Textual)

F4Words substituted by virtue of Local Government Act 1972 (c. 70), s. 219(1)

13. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F5E+W+S+N.I.

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Amendments (Textual)

14, 15.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F6E+W+S+N.I.

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16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F7E+W+S+N.I.

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Amendments (Textual)

17 Judgment debts to carry interest.E+W

[F8(1)] Every judgment debt shall carry interest at the rate of [F98] pounds per centum per annum from [F10such time as shall be prescribed by rules of court] . . . F11 until the same shall be satisfied, and such interest may be levied under a writ of execution on such judgment.

[F12(2)Rules of court may provide for the court to disallow all or part of any interest otherwise payable under subsection (1).]

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Amendments (Textual)

F8S. 17 renumbered as s. 17(1) (26.4.1999) by S.I. 1998/2940, art. 3(a); S.I. 1998/3132

F9Word substituted (1.4.1993) in relation to any judgment entered up after 1.4.1993 by virtue of S.I. 1993/564, arts. 1, 2.

F10Words in s. 17(1) substituted (26.4.1999) by S.I. 1998/2940, art. 3(b); S.I. 1998/3132

Modifications etc. (not altering text)

C4S. 17 applied: (1.7.1991) by Criminal Justice (International Co-operation) Act 1990 (c. 5, SIF 39:1), s. 15(3); (3.2.1995) by 1994 c. 37, ss. 10(3), 69(2) (with s. 66(2)); (1.11.1995) by 1988 c. 33, s. 75A(3) (as inserted (1.11.1995) by 1995 c. 11, s. 9 (with s. 16(6)); S.I. 1995/2650, art. 2); (2.9.1998) by 1993 c. 39, s. 10A(13) (as inserted (2.9.1998) by 1998 c. 22, ss. 2(1)(5), 27(5))

S. 17 applied (E.W.) (prosp.) by 2002 c. 29, ss. 12(2), 458(1)

S. 17 applied (prosp.) by 2002 c. 40, ss. 113(1), 279

C5S. 17 amended by S.I. 1985/437, reg. 2

C6Power to exclude conferred (26.4.1999) by S.I. 1998/3132, rules 47.8(3), 47.14

18 Decrees and orders of courts of equity, &c. to have effect of judgments.E+W+S+N.I.

All decrees and orders of courts of equity, and all rules of courts of common law . . . F13 whereby any sum of money, or any costs, charges, or expences, shall be payable to any person, shall have the effect of judgments in the superior courts of common law, and the persons to whom any such monies, or costs, charges, or expences, shall be payable, shall be deemed judgment creditors within the meaning of this Act; and all powers hereby given to the judges of the superior courts of common law with respect to matters depending in the same courts shall and may be exercised by courts of equity with respect to matters therein depending . . . F13 and all remedies hereby given to judgment creditors are in like manner given to persons to whom any monies, or costs, charges, or expences, are by such orders or rules respectively directed to be paid.

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Amendments (Textual)

19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F14E+W+S+N.I.

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Amendments (Textual)

20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F15E+W+S+N.I.

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21. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F16E+W+S+N.I.

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22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F17E+W+S+N.I.

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Amendments (Textual)

23—123.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F18E+W+S+N.I.

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Amendments (Textual)

SCHEDULE to which this Act refers.E+W+S+N.I.

No. 1.—Writ of Capias.E+W+S+N.I.

VICTORIA, &c. To the Sheriff ofor to the Constable of Dover Castle,or To the Mayor and Bailiffs of Berwick-Upon-Tweed [or as the Case may be], Greeting.

WE command you that you omit not by reason of any Liberty in your Bailwick, but that you enter the same, and take C.D. if he shall be found in your Bailwick, and him safely keep until he shall have given you Bail, or made Deposit with you according to Law in an Action or Promises [or of Debt, &c] at the Suit of A.B. , or until the said C.D. shall by other lawful Means be discharged from your Custody. And we do further command you that on Execution hereof you do deliver a Copy hereof to the said C.D. And we hereby require the said C.D. to take notice that within Eight Days after the Execution hereof on him, inclusive of the Day of such Execution, he should cause Special Bail to be put in for him in our Court of to the said Action, and that in default of so doing such Proceedings may be had and taken as are mentioned in the Warning written or endorsed hereon. And we do further command you, that immediately after the Execution hereof you do return this Writ to Our said Court of , together with the Manner in which you shall have executed the same, and the Day of the Execution thereof; or if the same shall remain unexecuted, then that you do so return the same at the Expiration of One Calendar Month from the Date hereof, or sooner if you shall be thereto required by Order of the said Court or by any Judge thereof. Witness at Westminster, [ or as the case may be,] the Day of .

Memorandum to be subsribed to the WritE+W+S+N.I.

This Writ is to be executed within One Calendar Month from the Date thereof, including the Day of such Date, and not afterwards.

A Warning to the Defendant.E+W+S+N.I.

If a Defendant, having given Bail on the Arrest, shall omit to put in Special Bail as required, the Plaintiff may proceed against the Sheriff or on the Bail Bond.

Indorsements to be made on the Writ.E+W+S+N.I.

Bail for Pounds by Order of [naming the Judge making the Order], dated this Day of .

This Writ was issued by E.F. of Attorney for the Plaintiff [or Plaintiffs] within named.

or,

This Writ was issued in person by the Plaintiff within named, who resides at [mention the City, Town, or Parish, and also the Name of the Hamlet, Street, and Number of the House of the Plaintiff’s Residence, if any such there be.]

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