Page:The American Cyclopædia (1879) Volume V.djvu/749

 DEBTOR AND CREDITOR 745 Debreczin was often taken, pillaged, and part- ly destroyed. The Turks finally left it in 1684. Having embraced Protestantism in the first half of the 16th century, and adopted the Hel- vetian creed in a synod held there in 1567, it suffered bloody persecutions in 1686 from the Austrian general Caraffa. It also suffered greatly during the insurrection under Rakoczy, after the termination of which it was made a free royal town in 1715. In the earlier part of 1849 it was the seat of the Hungarian revo- lutionary government under Kossuth, and the sessions of the diet were held there from Jan. 9 to May 30, in the most important of which, held in the Calvinist church, on April 14, the independence of Hungary was declared. On Aug. 2 the flank guard .of Gorgey, under Gen. Nagy-Sandor, was surprised by an overwhelm- ing Russian force on the plain before the town, and was dispersed after a short resistance. DEBTOR AND CREDITOR. In the early laws of every country there will be found greater severity against debtors than at a later period of civilization. The reason is twofold : 1, the want of sufficient intellectual acumen to dis- tinguish the degrees of wrong in cases of fraud and of unforeseen accident and misfortune ; 2, the actual want of probity in the earlier period of national existence. It is very common to suppose that in a rude state of society there is a greater degree of honesty and fair dealing than in an advanced civilization ; but that this is a mistake we need no better proof than the his- tory of the laws of the Germanic nations. There was no lack of personal independence, at least of intrepidity in war, yet in judicial proceedings it was found that no reliance whatever could be placed upon the oaths of parties or wit- nesses. Thus, instead of producing witnesses who could testify to the fact in question, nu- merous compurgators or conjurators were call- ed to swear that they believed the statement made by the party who called them ; and this was found so uncertain that the trial by combat was preferred as a better mode of determining .the fact. So it is reasonable to in- fer by analogy that the cruelty exhibited in the early laws of the Athenians, and in the Roman law of the twelve tables, was founded upon the trickery and dishonesty which prevailed at Athens and Rome. The right of the creditor to sell the debtor as a slave was abolished by Solon. The decemvirs of Rome, who pro- fessed to follow his legislation, did not con- form to it in this particular, but enacted a law more oppressive than the Athenian, or indeed than any of which we have an authentic rec- ord, whereby the debtor was subject to be taken by the creditor to his own house, and to be most cruelly dealt with for 60 days, after which he could be sold into foreign slavery. The atrocious conduct of a usurer who under- took to gratify his lust upon a young man who had surrendered himself for a debt of his fa- ther, and in consequence of the resistance of the prisoner scourged and otherwise maltreated him, led to an outbreak of the people and tlus passage of a law by the senate, A. U. C. 428, by which creditors were prohibited from ta- king debtors into their own custody, but the right of selling them into slavery still re- mained. This power seems to have become practically obsolete, and a milder mode of treatment grew up under the emperors. Ac- cording to the Institutes of Justinian, a debtor was subject only to loss of property for pay- ment of his debts. The same practice pre- vailed in England at an early period. Suits were commenced by a summons, and if the de- fendant failed to appear, process was issued for the attachment of his property ; but in ac- tions upon' contract no further remedy was given, either at the commencement of the suit or after judgment. In actions for injuries ac- companied with force, it was, however, per- mitted to issue process for the arrest of the person. By various statutes the same remedy was extended to other actions in which there was no force, as actions of account, debt, deti- nue, and actions on the case. In the court of king's bench, however, the defendant was, with- out the aid of these statutes, liable to arrest upon process issued for an alleged trespass, and when arrested he was made to answer for any other cause of action. In the court of exchequer jurisdiction was obtained by a similar fiction. Upon recovery of judgment in any action in which an arrest was allowed upon mesne pro- cess, a writ could be issued called a capias ad satisfaciendum, whereby the defendant could be arrested and committed to close custody (in arcta custodia) and if he was suffered by the sheriff to be outside of the jail, it was deemed an escape, for which the sheriff was made liable for the whole amount of the debt. In the United States the same forms of pro- ceeding were introduced, but were gradually modified in advance of the changes in the English practice. In the state of New York it was provided that a capias ad satisfaciendum should not be issued till after an execution against the property (called & fieri facias) had been issued and returned unsatisfied. In 1831 imprisonment for debt upon contract, except in certain cases, was abolished in that state. The exceptions were where fraud had been committed or was intended, in which cases an arrest could be ordered by a judge, to which exception was added, by a statute of 1846, the case of money received in a fiduciary capacity ; and by a subsequent statute imprisonment for interlocutory costs was abolished. The prin- ciple embraced in these laws was adopted in the code of procedure of 1849. Arrest is thereby prohibited in all civil actions, except in certain specified cases, viz. : in actions for injury to the person or character, or for in- juring or wrongfully taking or detaining prop- perty ; in cases of embezzlement by public of- ficers, or persons acting in a private fiduciary capacity ; for misconduct in office or any pro- fessional employment; in actions to recover