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satisfied portion of his claims. The comparative merits of the system introduced by the 5 & 6 Vict. c. 116. ss. 9, 10., and of the English law of bankruptcy, will be considered in our next Number.

By the acts in question, the petitioner is to be a person who shall have resided twelve calendar months" within the district. It is probable that the legislature meant that the period of residence should be twelve months next before the filing of the petition. But as this intention, if it existed, is not expressed, it has been considered that any twelve months, though not consecutive, will be sufficient. There seems, therefore, to be no reason why a residence within the district during the first twelve months of the petitioner's existence should not be regarded as bringing him within the terms of the enactment.

The petition is required to be signed by the petitioner in the presence of a person described as attorney or "agent in the matter of the said petition." It is understood that from the frequent use of the word "agent," when coupled with the word "attorney," as denoting an attorney who acts for the attorney immediately employed by the client, it has been supposed that the agent referred to in this form must be an attorney. This may perhaps be regarded as a somewhat forced construction to put upon the words "agent in the matter of the said petition." The commissioners, however, feeling probably the inconvenience of allowing insolvents to be in the hands of persons over whom no salutary control could be exercised, have, it is believed, decided that the " agent must be an attorney at law." The form of attestation appears to require that some agent should be employed; which may often be a hardship upon the petitioner.

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After the expiration of the time allowed by the interim order, or any renewal thereof, the petitioner who has been discharged from custody under it, may be again taken in execution. It is not stated whether fresh process must issue in such case. There seems to be no reason why the sheriff should not be empowered to retake the petitioner, or his property, if they can be found, upon process already executed, unless such process has been actually returned.

By the twelfth section of the 7 & 8 Vict. c. 96. it is

enacted, that when the assignee accepts a lease, or an agreement for a lease, to which the petitioner is entitled, "the said petitioner shall not be liable to pay any rent accruing after the filing of his petition, nor be in any manner sued after such acceptance in respect of any subsequent non-observance or nonperformance of the conditions, covenants, &c." According to strict grammatical construction, the word "subsequent would refer to the acceptance, whereas it ought, in justice, to be made to refer to the filing of the petition; as there can be no reason why liability to conditions and covenants should continue longer than liability to the rent.

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There appears to be some confusion in the twenty-second and twenty-fourth sections of the 7 & 8 Vict. c. 96., as to the extent of the protection afforded by the final order. The twenty-second section protects the petitioner against the claims of indorsees or holders of negotiable securities, but it contains no provision in respect of the claims of parties who, as drawers, indorsers, or acceptors, may be called upon to pay the amount of bills for which the petitioner may be ultimately liable. The twenty-fourth section enumerates several species of debts which are to disentitle to the benefit of the acts. In this enumeration we find no mention of the costs of a suit in the ecclesiastical court for defamation, the costs of a vexatious defence, or the damages recovered in a suit for a malicious prosecution; nor is he excluded from the benefit of the acts by fraudulent preference. A voluntary preference may be legally fraudulent without involving moral guilt; but it may exist in a form quite as odious as fraud in contracting a debt. On the other hand, a person guilty of a breach of trust is excluded from the benefit of the acts. This was no doubt meant to apply to breaches of trust for the personal benefit of the trustee; but, as the clause stands, it will operate against a trustee who, to save the cestui que trust and his family from ruin, has, at his own personal risk, advanced money upon leasehold security, &c., where he was authorised only to take freehold security.

A great mass of suffering has been removed by the clauses for abolishing arrest upon final process in actions for debts not exceeding 207. This enactment might perhaps be advanta eously extended to other pecuniary demands which

are not strictly debts, -as the liability of the drawer of a bill of exchange, or of the indorser of a bill or note, and other collateral engagements.

Nothing in the shape of an equivalent is given to creditors for the loss of the coercion of imprisonment in cases of small debts. This might, without difficulty, be provided by a stop upon salaries, wages, &c., according to the Prussian ordinance of 24th January, 1843, to be noticed on a future occasion.

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The power of imprisoning for fraud is given to the judge who "tries the cause.' This seems to leave the case of a judgment by default, or on demurrer, or other issue in law, unprovided for.

Some difficulty has been supposed to arise upon the interpretation clause (sect. 73.) of the last act. We have seen that by the ninth section of the 5 & 6 Vict. c. 116. the assignees are entitled to claim, in the mode there pointed out, all property acquired by the petitioner after the making of the final order. By the 7 & 8 Vict. c. 96. s. 73. it is stated that in construing that act, the word "property" shall mean and include, &c.-" and all the future estate, right, title, interest, and trust of such petitioner in or to any real or personal estate and effects, within this realm or abroad, which such petitioner may purchase, or which may revert, descend, be devised, or be bequeathed or come to him before he shall have obtained his final order." It has been suggested that these last words impliedly exclude from the operation of the act "properly coming to the petitioner after the obtaining of the final order." But it is to be remembered that, under the former act, the after-acquired property was not to vest in the assignee, in the same manner as his previous property, but was made the subject of a claim by the assignee, to be decided upon by the commissioner before the property could vest in the assignee.

The 5 & 6 Vict. c. 116. contained no provisions respecting the property of the petitioner in case the final order should be refused. This omission is supplied by the 7 & 8 Vict. c. 96. s. 16., by which the property is, upon such refusal, to revest in the petitioner, subject to the acts done by the assignee in the mean time. It may be questionable whether the delinquency upon which the refusal proceeds, should entitle the

petitioner to withhold from his creditors the partial satisfaction which the property in the hands of the assignee might produce. After an adjudication that the petitioner is not entitled to his discharge, it can hardly be said that he is the most proper person to administer the property; and it is difficult to see what right he has to require that the fund should be placed at his disposal, instead of being applied in rateable diminution of the liabilities which he has improperly incurred.

The great principle of the enactments contained in the 5 & 6 Vict. c. 116., and the 7 & 8 Vict. c. 96., appears to be that mere insolvency is not unnecessarily to be subjected to inconvenience or suffering, and that punishment is to be reserved for cases in which the liabilities of the insolvent have their origin in misconduct, or in which payment is contumaciously withheld, or in which the means of payment have been fraudulently diminished. In pointing out what appeared to be errors of detail, it has been our object to assist in carrying out the important principle of the enactments in which they occur. We have little doubt that this will be provided for by an amendment act in the next session, — if, indeed, the opportunity be not taken for consolidating and amending the whole law of bankruptcy and insolvency, for which we know the profession is anxious, for which the materials have been collected, and towards which the important step above alluded to has already been taken.

CORRESPONDENCE.

[In conducting this Journal we shall be willing under this head to insert any letters in opposition to the views maintained in our pages. But of course we expect that any such letters shall be in temperate language; and we may also hint that they must not be too long, as the space to be devoted to them is very limited.]

WE deem it our duty to give every publicity to the following interesting letter from the learned, eloquent, and venerable Lord President Hope, in defence of his friend and predecessor Lord Braxfield, who, with the interval of Lord Eskgrove, preceded him as Lord Justice Clerk, an office held by the Lord President for some years before his elevation to the chair of the other court.

To the Editor of Blackwood's Magazine.

SIR, Edinburgh, 25th October 1844. I did not read Mr. Lockhart's "Life of Sir Walter Scott," and therefore it was only lately, and by mere accident, I heard that he had inserted an anecdote of Lord Braxfield, which, if it had been true, must for ever load his memory with indelible infamy. The story, in substance, I understand to be this That Lord Braxfield once tried a man for forgery at the Circuit at Dumfries, who was not merely an acquaintance, but an intimate friend of his Lordship, with whom he used to play at chess: That he did this as coolly as if he had been a perfect stranger: That the man was found guilty: That he pronounced sentence of death upon him; and then added, "Now, John, I think I have checkmated you now." A more unfeeling and brutal conduct it is hardly possible to imagine. The moment I heard the story I contradicted it; as, from my personal knowledge of Lord Braxfield, I was certain that it could not be true. Lord Braxfield certainly was not a polished man in his manners; and now-a-days especially would be thought a coarse man. But he was a kind-hearted man, and a warm and steady friend-intimately acquainted with all my family, and much esteemed by them all. I was under great obligations to him for the countenance he showed me when I came to the bar, just sixty years ago, and therefore I was resolved to probe the matter

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