The Legal Observer, Digest, and Journal of Jurisprudence

little relation to the subject of bankruptcy and insolvency, and could scarcely be exTHE bill presented by Lord Brougham, pected to be comprehended in a bill with to the House of Lords, previous to the such a title. The power with which it is Easter recess, has been reprinted with the intended to invest the judges of the County amendments agreed to in committee. If Courts, to order the arrest of debtors supthe measure does not acquire force, it cer- posed to be about to depart from England, tainly obtains a great accession of bulk as and which formed the subject of some it proceeds, and should it continue to in- lengthened observations in our number of crease in the same proportion, before its Saturday last, is conferred by, and exarrival at the last parliamentary stage it plained in, a single clause. It is in these may be entitled to the distinction of a words:monster bill.

The amendments introduced in committee are undoubtedly of great substantive importance, and some of them well deserving of serious consideration when a fitting occasion arises. As we have frequently had occasion to observe, an annual revolution in a matter of such universal application as the law of debtor and creditor is itself an evil of considerable magnitude. This branch of the law has now become so complicated and involved, by a multitude of contradictory enactments, that a careful and well-digested consolidation should precede or accompany any further change. Without this, even ju dicious and well-considered alterations could scarcely be satisfactory or effective. Our readers shall presently have an opportunity of judging for themselves, how far the additions now proposed to be made in the bill are entitled to be called amendments. We intend, however, in the first instance, to direct attention to two of the

See notice of Lord Chancellor's new bill for consolidating and amending the Law of Bankruptcy, p. 16, post.

VOL. XXXIV. No. 999.

"Whereas the delay which sometimes takes place in procuring an order from a judge of one of the superior courts to hold a defendant to bail, and in issuing a capias thereon, is injurious to creditors; be it enacted, That if a plaintiff in any action in any of her Majesty's superior courts of law at Westminster for the recovery of a debt, or the creditor of any debtor who shall enter into an undertaking imby the affidavit of himself or some other person mediately to commence such an action, shall show to the satisfaction of any judge of any of the county courts aforesaid, that he has a cause of action against such defendant or debtor to the amount of 201. or upwards, or has sustained bable cause for believing that such defendant damage to that amount, and that there is proforthwith apprehended, it shall be lawful for or debtor is about to quit England unless he be such judge to issue his warrant, directed to such person or persons as he shall think fit, whereby such person or persons shall have authority to arrest any such defendant or debtor named in such warrant, wherever he may be found within the limits of the jurisdiction of then next, or until such defendant or debtor such judge, and him safely keep for five days shall have given a bail bond to the sheriff, or shall have made deposit of the amount of the debt or damages mentioned in such warrant, together with 10l. for costs, according to the

The Amended Bankruptcy and Insolvency Bill.

present practice of her Majesty's superior courts plaintiff in an action for the recovery of a

of law at Westminster when a defendant is in custody upon a writ of capias, or until an order for holding such defendant or debtor to bail can be obtained under the provisions of the act 1 & 2 Vict. c. 110, [setting out the title].

It will be observed, that under this provision, the arrest contemplated by a war rant of a judge of the County Court will not justify the detention of the debtor for a longer period than five days: if it is in

debt, or the creditor of a debtor; but the warrant may issue at the instance of such person, if he can satisfy the judge that he has a cause of action to the amount of 202, The section is silent as to the destination or has sustained damage to that amount. of the party arrested. He is to be safely kept for five days, or until he shall have given a bail bond, or made deposit, but whether the safe keeping is to be in a gaol, in his own home, or in the house of the officer, is not specified, and, we suppose, is to be left to the discretion of the party to whom the warrant is directed. Upon what terms a debtor so arrested can be allowed an opportunity of entering into a bail bond to the sheriff, if so disposed, is also left altogether to the conscience of the bailiff!

Again, suppose the debtor is desirous to give a bail bond to the sheriff within five days, how is the sheriff to know in what amount he ought to take a bond from a whom he has no warrant? The section, in debtor not in his custody, and against its present form, suggests numerous practical difficulties, and abundant opportunity for oppression on the one side, and evasion on the other.

referred more immediately interests those The second provision to which we have gentlemen who have accepted office as judges of the new County Courts, as it secures to them and their successors a life income, and, so far as they are concerned,

cannot fail to be considered a

valuable

tended that the detention should continue beyond that period, application must be made, as at present, for an order to issue a capias from one of the judges of the superior courts. As the order may be had, in general, in the first instance, from a judge of the superior courts as soon as a warrant could be obtained from a judge of the County Court, we venture to think the cases will not be very numerous in which parties will incur the double expense and trouble of an application to a County Court judge, which must be followed before the expiration of five days by a similar application to a judge of the superior courts, more especially, as it cannot be ascertained whether the latter will be satisfied with the same materials which induced the County Court judge to grant his warrant. The clause, it will be perceived, requires that the creditor shall either commence his action in one of the superior courts, or "enter into an undertaking immediately to commence such an action." What is to be the consequence if a creditor enters into such an undertaking and neglects to fulfil it, is not specified, and therefore, we apprehend, the only effect of a breach of the undertaking would be, that the imprisoned debtor might apply for his "That from and after the passing of this act discharge upon the ground that the credi- it shall be lawful for the Lords Commissioners tor had not commenced an action. Before of her Majesty's treasury, by any order or the application could be entertained, how orders, or minute or minutes, to be by them from time to time made on a petition presented ever, unless it should be determined with- to them for that purpose, to order (if they shall out any notice to the creditor, the five days, think fit) to be paid out of the Consolidated which the warrant of the judge of the Fund of the United Kingdom of Great Britain County Court has to run, would expire, and and Ireland the annuities following; that is to the debtor obtain his discharge upon say, an annuity [to the chief and other comgrounds irrespective of the violated under- missioners of the court for the relief of intaking. The framers of this clause would solvent debtors] and an annuity or clear yearly seem not to have quite made up their pounds to any judge of any county court apsum of money not exceeding minds whether the judges of the County pointed under the aforesaid act passed in the Court should have jurisdiction to authorize tenth year of the reign of her present Majesty, an arrest in cases of tort, or in claims for or any of his successors in the office of such unliquidated damages; or whether the judge, if and when any such chief commisauthority to issue a warrant is to be limited sioner, commissioner, or judge shall be afflicted to cases where, the party applying for the the due execution of his office, and shall be with permanent infirmity disabling him from warrant can swear to the existence of an desirous of resigning the same; such annuity ascertained debt, The parties entitled to or clear yearly sum to be paid by equal quarterly apply for a warrant are described as, the payments on the 5th day of January, the 5th

very

amendment of the act of last session. The section, which is numbered 44, proposes

to enact :

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