Appendix CASE ONE - Collection Point® | The Total Digital Asset ...

136 Legal History in the Making
such claims represented simple debts. 35 Yet even if a third of these debt
actions reflected transactions more complex than simple borrowing, the
remainder still constitutes most common law actions for the period in
question.
Brought for small amounts, such actions could be equally unsatisfactory
both for the legal system and for the participants. Unless the creditor
employed arrest, she (recall that many small creditors were widows) risked
having the defendant ignore the action. But if the plaintiff did use arrest to
secure a speedy judgement, the sheriff would be asked to seize the defendant
for a debt that might be trivial. However much such an arrest inconvenienced
the defendant, it assured the plaintiff only of the adversary's appearance,
not of payment. The 1725 default legislation reflects frustration with such a
simultaneously Draconian and futile procedure in its very title: 'An Act to
prevent frivolous and vexatious arrests'. The wording suggests a picture of
expanding credit pressing against the confines of a legal system not designed
to handle such transactions. Arrest, after all, had been justified on the grounds
that the defendant had committed a violent breach of the king's peace. 36 When
such 'breaches' consisted of failing to repay twenty shillings, the system was no
longer able to function. The coming of default judgements thus both reflected
and eased the growth of credit. Expanding credit, particularly small, private
credit, created the pressure; incorporating default judgements into the system
made the collection of some debts slightly faster, even as they made it possible
for the legal system to function without collapse.
The use of arrest to collect debts was coming to seem anomalous as well as
vexatious. So long as felonies and trespasses were both prosecuted by private
citizens seeking now revenge and now compensation the anomaly had not
appeared. That world was slowly coming to an end in the seventeenth century.
35 The conditioned bond was a very common contractual instrument through the end of the eighteenth
century. Those binding themselves to contractual obligations did so by executing a bond
calling for payment of an amount considerably larger than the value of the underlying contract. On
the reverse of the bond was a condition, excusing its performance if before the date on which it fell
due the obliger rendered some performance - the construction of a building or the repayment of a loan
(the real obligation for which the bond was a security instrument).
36 During the year preceding its enactment, the bill that became the default statute had been linked
in parliamentary discussion with a companion bill for the relief of imprisoned debtors, Journals of
the House of Commons, October 9 1722 to May 15 1727 (rptd. 1803), xx, 311, 314, 603. This
circumstance suggests another reason for avoiding arrest in personal actions, set forth in a petition
of such prisoners:
A petition of the poor and miserable Prisoners now lying in the Prison of White Chapel, in the
County of Middlesex, on behalf of themselves and others, their Fellows, being about one hundred
and twenty in number, was presented to the House and read; setting forth that the petitioners are
imprisoned for very small debts; the charges of the Arrest, and fees of confinement amounting to
more than the debt; which mostly have arisen from the Necessity of their Families to Tallymen,
Pawnbrokers and others . . . Ordered, That the said Petition do lie upon the table until the bill to
prevent frivolous and vexatious arrests shall be read a second time.
Ibid., 603. Tallymen advanced goods on credit, to be paid for in instalments.