We are not aware that by the adoption of these simple alterations any practical inconvenience could by possibility arise; while it is obvious that they would considerably diminish the laborious and perplexing duties of the Court of Queen's Bench, which is at present notoriously taxed very far beyond its strength, and would also cause material relief to the parties themselves in the important subject of costs. We are not prepared to show the extent of this relief, since the additional expenses incurred by removing criminal proceedings into the Court of Queen's Bench must of necessity vary much, in proportion to the length of the indictment, the number of the defendants, the extent of the opposition, and the delay that is occasioned; and moreover, the late alterations in the crown-office fees render it impossible to rely with any degree of certainty on the former averages. Still, we are amply warranted in asserting, that the extra costs, occasioned by removing proceedings by certiorari, must in all cases be considerable, and in some grievous; and if we have explained in our preceding remarks, that the objects, for which these costs are now incurred, might be attained at a far cheaper rate, and in a more simple and commodious manner, surely we are justified in proposing that the writ of certiorari in criminal cases be forthwith abolished.

ART. XIV.—THE LAW OF BANKRUPTCY AND INSOLVENCY.

An Act to amend the Law of Insolvency, Bankruptcy, and Execution, 7 & 8 Vict. c. 96. Royal Assent, 5th August 1844.

In all just and rational legislation upon the rights and duties arising out of the inabilities of parties to fulfil their pecuniary engagements, the first and most important object will be, to diminish the loss and the inconvenience which the creditor is made to suffer through the insolvency of the debtor, and to place him as nearly in the position in which

the engagements of the debtor entitled him to stand, as the altered circumstances of the debtor will permit. This being as far as possible secured, the next object will be, to relieve the debtor from all suffering, and from every inconvenience, not absolutely necessary for the purpose of enforcing the duty of payment to the extent of the debtor's own means, or of discouraging imprudence, and suppressing fraud and crime in others.

It would be difficult, if not impossible, to carry out these views fully, except by adopting a system which in all its parts should be framed in accordance with the principle stated above. In no country do the law-makers appear to have kept both these objects steadily in view. In England a systematic legislation on this subject can scarcely be said to have been attempted. The statute-book exhibits a constant course of oscillation between measures introduced solely for the protection of the rights of the creditor, and others of a contrary character, prompted by anxiety to alleviate the sufferings of the debtor, in which little attention is paid to the safety of the creditor.

It has begun to be felt that this alternate and unconnected legislation is not the best adapted for the commercial prosperity of the country, or for the purposes of ordinary life. A bill was submitted to Parliament on the 13th of May 1844 for the purpose of remodelling the law of insolvency, commercial and non-commercial, and reducing our conflicting legislation to one graduated system in conformity with the principles already stated. The measure so submitted had the benefit neither of party support nor of party opposition; and advanced no further than a second reading, notwithstanding this bill had been prepared by the direction of her Majesty's Government.

By the common law of England, the body of a freeman could not be held in custody except for some crime or breach of the peace. The power of arresting a defendant after judgment obtained against him, and even pendente lite, was given to the plaintiff in certain cases by a statute of Edward I., which had for its principal object the punctual fulfilment of commercial engagements. This proviso was afterwards extended to all cases in which a sum certain was demanded.

The object of the legislature in conferring this power upon creditors may be supposed to be fourfold: first, to deter parties from entering into pecuniary engagements without a strong probability of their being able to fulfil those engagements. Secondly, by the fear of an arrest, to induce debtors, who require such a stimulus, to set about procuring the means of satisfying their liabilities. Thirdly, by the coercion of actual imprisonment to obtain payment out of such funds as would otherwise not be accessible. Fourthly, as a punishment for the wrong done to the creditor. Each of these objects was, no doubt, in many cases attained. But where the debtor was actually imprisoned, it frequently happened that he possessed no lands which could be made available to the creditor to a greater extent than might be attained to by a writ of elegit, and that he had no secret funds at his disposal. Under such circumstances, the imprisonment could operate only by way of punishment, or as a means of obtaining payment by working upon the compassionate feelings of others. The power of imprisonment was to be

some

exercised at the sole discretion of the offended creditor; and imprisonment was frequently prolonged so as to create much unprofitable suffering—sometimes from suspicions entertained by the creditor of the existence of concealed funds times from the hope of acting upon the compassion of relations sometimes from ill-will engendered by the loss which the creditor has sustained; and, it is to be feared, not unfrequently, as the means of obtaining some unjust preference or collateral benefit, or of enforcing a compliance with some other unreasonable demand. The power

of taking the person of the debtor in execution was, when exercised, attended with this singular disadvantage to the creditor himself. As the body of a freeman was was considered to be above all pecuniary estimation, the detention of the person was regarded as complete satisfaction for the debt upon which that detention took place, whatever might be the amount. The creditor was therefore shut out from all other remedies for obtaining payment of his demand, unless his rights were revived by the escape of the debtor, or, since the statute 21 Jac. 1. c. 24., by his death during the imprisonment. The debt, however great, was treated

as merged in the captivity of the debtor, as a term certain of 10,000 years merges in the uncertain and inappreciable duration of an estate for life.

The misery resulting to debtors and their families from the power given to their creditors of taking their persons in execution, without producing any corresponding benefit to the creditors, has induced the legislature in repeated instances to interpose by temporary palliatives. In 1836 the Common Law Commissioners made a report in which they recommended the abolition of arrest before judgment upon what is technically, but now somewhat incorrectly, called mesne process. This recommendation was adopted by the legislature, and was carried out by the 1 & 2 Vict. c. 110. The report also recommended the abolition of arrest in execution, or upon final process, and the substitution of more stringent remedies against the property of the execution debtor; by which it was hoped that all his available means might be placed within the reach of the judgment creditor. The act of 1 & 2 Vict. c. 110. did give the more extended remedies against property, but it left the power of imprisoning after judgment in the hands of the creditor. It was probably considered that no writ of fieri facias or other process could be made to operate effectually upon property which the debtor had fraudulently invested in the names of others, or upon property which, though standing in the debtor's own name, was locally situated beyond the reach of British law, and that the fear of imprisonment and its attendant disgrace was often productive of exertions which benefited the creditor, and which a mere sense of justice would have failed to produce. The evils resulting from the unrestrained power in the hands of the creditor, of taking and detaining the person of his debtor in execution, was felt to require a more summary and effectual remedy than could be obtained in the Insolvent Debtors' Court, acting under the provisions of the 1 & 2 Vict. c. 110. With this view the act of the 5 & 6 Vict. c. 116. was passed.

By this act two classes of persons are entitled to be relieved from actual, and protected against impending, imprisonment. These measures were accompanied by others which were intended to operate as safeguards to the interests of the creditors. In providing for the latter object, however, the legislature

appears to have been less successful. By the 7 & 8 Vict. c. 96. the relief afforded to the debtor against imprisonment is extended; but that statute has done little towards bettering the position of the creditor.

The description applied to the first class of persons relieved and protected from imprisonment by the statutes 5 & 6 Vict. c. 116., and 7 & 8 Vict. c. 96., is, 66 any person not being a trader within the meaning of the statutes now in force relating to bankrupts." The description of the second class is, "any person, being such trader, but owing debts amounting in the whole to less than 3007."

The first of these descriptions has given rise to a question of some difficulty. The act of 5 & 6 Vict. c. 116. received the Royal assent on the 12th of August 1843, which was the same day on which the Royal assent was given to the 5 & 6 Vict. c. 122., which extends the provisions of the bankrupt laws to apothecaries, carriers, and certain other traders, who were not liable to a commission or fiat under the former laws relating to bankruptcy. But the latter statute was not to come into operation till the 11th of November, 1843. It has therefore been held by the learned Commissioners of the Court of Bankruptcy, that a person carrying on the trade of an apothecary, carrier, &c., which trades were first brought within the operation of the bankrupt law, by the act of 5 & 6 Vict. c. 122., is entitled to the benefit of its provisions, however large the amount of his debts. The persons intended to be included in the first of the above-mentioned classes are, evidently, those who would not be entitled to relief through the bankruptcy laws, a condition which ceased to apply to apothecaries, carriers, &c. as soon as those laws were extended to such traders. But whatever may be presumed with respect to the intention of the legislature, the words "now in force" were considered too precise to admit of two constructions. This difficulty appears to be removed by the 7 & 8 Vict. c. 96. That statute gives, in a schedule, the form of a petition, in which the debtor negatives his being a trader within the meaning of the statutes "now" (that is, at the time of presenting the petition) in force relating to bankrupts, the truth of which statement is verified by the petitioner's affidavit. This appears to be a legislative declaration that the character