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evil would be to enable either party to change the venue, on an application either to the court or to the committing magistrate. Of the remaining grounds, those which allege that the law is difficult of application, and that the facts are complicated, are obviously confined to indictments preferred at the sessions, and even with respect to such indictments would be entitled to far less weight, if professional chairmen were once established; while those which rest on the necessity for a special jury, and a view of the locus in quo, are the only two which apply to indictments found at the assizes, or at the Central Criminal Court. If, then, an act were passed enabling special jurors to be summoned to attend these courts1, and authorising the presiding judge of every court which is competent to try an indictment, as also the several police magistrates 2, to make such orders respecting views as the justice of each case demands, it is clear that the necessity for obtaining a writ of certiorari, to remove proceedings from the assizes, or from the Old Bailey, would in all cases be obviated, while, even from the sessions, such writs would be rendered so much the less frequent, in proportion to the number of applications to remove, in which the necessity of obtaining a view is a material ingredient. As to the very few cases, in which it would be proper to remove indictments found at the sessions, either on the ground that abstruse points of law were likely to arise at the trial, or that the facts were such as ought to be submitted to the superior intelligence of a special jury, provision might be made for these, by authorising the justices at sessions to transmit the indictments to the assizes 3, and, in the event of their refusing to do so, by further empowering either party to apply to one of the superior judges for an order to that effect.

1 This alteration was suggested in vol. xxxi. Law Mag. p. 271-273., where arguments in its favour are urged at some length.

* This alteration might be effected by simply extending to the judges sitting on the Crown side at the assizes, to the chairmen of the sessions, and to the police magistrates, the powers already conferred on the judges of the Superior Courts by 6 G. 4. c. 50. ss. 23, 24.

3 The justices at sessions may even now, as it seems, exercise this power. R. v. Wetherell, R. & R. 381.; Turner's Case, 2 Lewin, C. C. 265.: but the act should place the question beyond all doubt.

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

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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 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

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