"Mer. You know, since Pentacost, the sum is due, Or I'll attach you by this officer."1 To attach is to take into the custody of the law the person or property of one already before the court, or of one it is sought to bring before the court. The writ is in the nature of a criminal process and issues from a court of record to a Sheriff or other officer commanding him to bring the person named in the writ before the court.2 Of course at the time of Shakespeare, in England, the law permitted the creditor to obtain a writ for the imprisonment of his insolvent debtors and this law continued in effect in the United States, until the different states abolished same by special statutes and organic law.* In Two Gentlemen of Verona, the following occurs: "Speed. No believing you, indeed sir. But did you perceive her earnest? Valentine. She gave me none, except an angry word." (Act II, Scene I.) Lear is made to say, to Kent, in King Lear: "Now, my friendly knave, I thank thee. There's earnest of thy service." (Act I, Scene IV.) Boult is made to say, in Pericles, Prince of Tyre: "Master, I have gone through, for this piece, you see. If you like her, so; if not, I have lost my earnest." (Act IV, Scene II.) 1 Comedy of Errors, Act IV, Scene I. 23 Bl. Comm. 280; 4 idem. 283; Strange, 441. It has been claimed that prior to the statute of Hen. III, the debtor could not be arrested at common law, for failure to discharge his debt (Sir Wm. Herbert's case, 3 Co. 11; Palgrave's Rise and Prog. of Eng. Com., book 1, p. 181), but this is denied by Bracton and Reeves. Bracton, 440, 441; II Reeve's Hist. Eng. Law, pp. 439, 440. 4 * Imprisonment for debt, was abolished by statute in N. Y. Apr. 26th, 1831; in Massachusetts, in 1834; in Pennsylvania, 1995: in Mississippi, in 1839, and in Tennessee, in 1840. Hence, at the time this play was written, it was within the power of a merchant to arrest his debtor, for a failure to satisfy a debt, admitted to be due and the attachment by an officer was the legal process adopted for the purpose.1 Sec. 152. Arrest. "Ang. Here is thy fee; arrest him officer; I would not spare my brother in this case, To make an arrest is to deprive a person of his liberty, by legal authority; to seize him and detain him in the custody of the law. At the time this play was written 12 Kent's Comm. (12th ed.) 397. In Comedy of Errors (Act IV, Scene I) Angelo said to Antipholus: "Ang. This touches me in reputation: Either consent to pay this sum for me, or I attach you by this officer." And Antipholus said to the Officer: "Ant. That I should be attached in Ephesus: I tell you, 'twill sound harshly in her ears." (Comedy of Errors, Act IV, Scene IV.) In King Richard II, York said to Bolingbroke: "York. But, if I could, by him that gave me life, Unto the sovereign mercy of the king." (Act II, Scene II.) Before arresting Buckingham, in King Henry VIII, Brandon said: "Bran. Here is a warrant from the king to attach Lord Montacute." (Act I, Scene I.) Sicinius attempts to arrest Coriolanus, with this language: "Sic. Go, call the people; (Exit Brutus.) in whose name, myself, attach thee, as a traitrous innovator, a foe to the public weal." (Act III, Scene I.) Paris tells Romeo, on attempting his arrest for despoiling the grave of the Capulets: "I do defy thy conjurations, And do attach thee as a felon here." (Act V, Scene III.) The Watch, in Romeo and Juliet, gives direction: "Go, some of you, Whoe'er you find, attach." (Act V, Scene III.) 2 Comedy of Errors, Act IV, Scene I. Bouvier's Law Dictionary. it was one of the remedies furnished the creditor, against his debtor, whereby his person was taken and held as security for the payment of the debt due.1 Arrest and attachment are used interchangeably, but in strictness an arrest is the act resulting from the service of an attachment, and while an attachment applies as well to the taking of property, an arrest is used only in speaking of the seizure of persons.2 Sec. 153. Breach of promise. "Ant. E. Good lord, you use this dalliance to excuse, Your breach of promise to the Porcupine.' 'Reeve's History, Eng. Law, pp. 439, 440; Bracton, 440. 2 Bouvier's Law Dictionary. The Merchant directs the officer to arrest Angelo, in Comedy of Errors, as follows: "Mer. Well, officer, arrest him, at my suit. Off. I do; and charge you, in the Duke's name, to obey me." (Act IV, Scene I.) Westmoreland arrests Archbishop of York, Hastings and Mowbray, in 2' Henry IV (Act IV, Scene II) with this speech: "West. Good tidings, my lord Hastings; for the which, I do arrest thee, traitor, of high treason: And you, lord archbishop-and you, lord Mowbray, of capital treason I attach you both." The following occurs in the arrest of Falstaff, at the suit of the hostess, in 2' Henry IV (Act II, Scene I): "Fang. Snare, we must arrest sir John Falstaff. Host. Yes, good master Snare; I have entered him and all." "Fang. Sir John, I arrest you at the suit of mistress Quickly." After denunciation of the traitors, in King Henry V, they were all ordered arrested and were taken into custody as follows: "K. Hen. . . Arrest them to the answer of the law and God acquit them of their practices. Exe. I arrest thee of high treason, by the name of Richard, earl of Cambridge. I arrest thee of high treason, by the name of Henry, lord Scroop of Masham. I arrest thee of high treason, by the name of Thomas Grey, knight of Northumberland." (Act II, Scene II.) Comedy of Errors, Act IV, Scene I. 1 A breach of promise is the violation or failure to perform some obligation, engagement or duty, assumed by the party so failing. The words are not used in this verse in their technical legal sense, but rather in the sense that a mere engagement upon which no legal action could be maintained, was broken. Sec. 154. Arrest upon mesne process-Debtor's dungeon. "Dromio of S. No, he's in Tartar limbo, worse than hell. A wolf, nay, worse, a fellow all in buff; A back-friend, a shoulder-clapper, one that counter- The passages of alleys, creeks, and narrow lands; One that before the judgment carries poor souls to Dromio means to convey the idea that the arrest has been made by an officer, upon mesne process, before final judgment or trial, and he will be placed in a debtor's dungeon, which was meant by the cant term, "hell." By the terms "back-friend" and "shoulder-clapper," he means an officer who approaches from the rear of the person arrested," and places him under arrest by clapping his hand upon his shoulder and so advising him. This is the usual manner of making an arrest and the person is just as much deprived of his liberty, when so address't, as 1 Comyns Did., C. 45-49. 2 Comedy of Errors, Act IV, Scene II. 3 Bouvier's Law Dictionary. There was a place under the Exchequer Chamber, where the King's debtors were confined, called "hell" and also a place in Wood's street, given this name, as established by certain old publications, cited by Doctor Rolfe, in Comedy of Errors, p. 161, notes. 5 Rolfe's Comedy of Errors, p. 161, notes. if he had been locked up in prison, for he is denied his right of locomotion.1 Sec. 155. Action "on the case." "Adriana. Why, man, what is the matter? Dromio of S. I do not know the matter; he is 'rested on the case."2 An action on the case is a cause of action for an injury done by some tort, or wrongful act of the party causing the injury, although the injury was not the direct result of the wrong intended, as where one negligently leaves an obstruction in a street or pass-way and the obstruction causes an injury, the injured one could sue in an action on the case."3 Of course Dromio gets the legal terms mixed, in this instance, for as Antipholus was arrested in an action of debt, or on a contract, it was not an "action on the case" at all, but for the breach of an obligation assumed by a contract or upon an implied assumpsit to pay the reasonable value for the chain, which would be an entirely different kind of an action, in law.* "Ant. E. Thou hast suborn'd the goldsmith to arrest me. Suborn is to procure privately or secretly, as where one is incited to perform a criminal or bad action, by bribe or persuasion. 6 1 Newell on Mal. Pros. and False Arrest. 2 Comedy of Errors, Act IV, Scene II. Cooley's Torts. 'Lawson's Contracts (3d ed.). Speaking of the action of trespass upon the case, during the reigns of Henry VI and Edward IV, Reeves observes, in his History of English Law: "The action most favored was that of trespass upon the case, which, during these two reigns, expended itself in a manner that made it applicable to numberless cases for which the common law had not before provided any remedy." III Reeve's History Eng. Law, p. 559. Comedy of Errors, Avt IV, Scene IV. G Bouvier's Law Dictionary. |