the satisfaction of the debts due at the time of his insolvency, for the remainder of which a judgment now stands in the name of the assignees, he may be committed to close confinement in jail until he shall make such payment, or transfer, as the court shall order. s. 58.

Remedy against subsequent debtors of the insolvent. In case any person or persons, body politic or corporate, shall, after the discharge of any such prisoner out of custody, become possessed of, or have under his or their power or control, any stock in the public funds, or any legacy or money due or growing due, bills of exchange, promissory notes, bank-notes, security for money, goods and chattels, and any other property whatsoever, belonging to any such prisoner, or held in trust for him, as for his use and benefit, or to which such prisoner shall be in any way entitled; or in case any person or persons, body politic or corporate, shall be in any matter indebted to such prisoner, it shall be lawful for such court, upon the application of any assignee or creditor of such prisoner, to cause notice to be given to such person or persons, body politic or corporate, directing him or them to hold or retain the said property until said court shall make further order concerning the same; and thereupon it shall be lawful for the said court to order such person or persons, body politic or corporate, to deliver over such property, and to pay such debts as aforesaid, or any part thereof, to the receiver of said court, or to the assignees of said prisoner, for the benefit of his creditors entitled to claim under such judgment entered up by order of said court as aforesaid. s. 59.

Discharge of person and new acknowledgment of the debt will not make the debtor liable to arrest. The discharge exonerates the debtor from subsequent arrest on account of the debts described in his schedule, except in the cases of fraud and misconduct, as before specified, and as it had been held in Sweenil v. Sharp, 4 Bing. 37, that a warrant of attorney, given by the debtor after his discharge, for a debt to which the discharge applied, renewed the right of the creditor to arrest the debtor, this act provides that such warrant or any new security given for the same debt, shall not revive the right to arrest. s. 61.

Persons having previously been discharged. Any debtor having taken advantage of this act, cannot again take advantage of it within five years, without the consent of three fourths

in number and value of his creditors, unless it shall appear to the Insolvents' Court that he has been industrious, frugal, incurred no unnecessary expenses, and has endeavored to pay his debts, and that his repeated insolvency arises from misfortune or inability to acquire subsistence. s. 64.

Rehearing in case of error. If the debtor has in any case obtained his discharge by false evidence, &c. the court may order a rehearing. s. 67, 68.

Prisoner becoming non compos mentis. If the prisoner, after arrest, becomes of unsound mind, the court may, on inquiry and ascertaining the fact, proceed to grant his discharge, on the assignment of his property, as provided in such case, without any petition, schedule, or the compliance, on his part, with the requisitions of the statute. s. 73.

Debts to the crown. the crown, without the s. 74.

The act does not extend to debts to consent of the treasury department.

The remaining sixteen sections, give the Barons of the Exchequer jurisdiction in certain cases under this act; direct proceedings, and appoint fees in various cases; make certified copies of the records evidence; indemnify sheriffs for obeying orders of the Insolvents' Court; prescribe the manner of pleading the discharge, or pending of the petition; authorize the court to admit attorneys and make it contempt in any one to practice without such admission; and limit the amount to be paid proprietors of newspapers for inserting advertisements ordered by the court, to three shillings, and prohibit them from charging more than that sum for any one advertisement.

Insolvent Law of France. The subject of insolvency, as distinguished from bankruptcy, which occupies so many provisions in the English law, filis about two pages of the French code. It is, in substance, the cessio bonorum of the civil law. The cession is made either by agreement between a debtor and his creditors, or judicially by application to a court, and when made in this latter way it is defined to be a privilege accorded by the law to unfortunate but honest debtors, for the purpose of giving them personal liberty, but does not exempt their future acquisitions from the payment of their debts. It accordingly cannot be refused by the creditors. The debtor must deposite with the clerk of the court his schedule, his books, if he keeps such, and the evidences of his demands. This does not defeat, but only delays judgment in

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the action previously commenced against him. This privilege is denied to aliens, persons having been guilty of selling pretended titles, fraudulent bankrupts, persons who have been convicted of larceny or swindling, and to guardians, and trustees, in respect to responsibilities incurred in those capacities. The mode of proceeding is not particularly described in other respects, but reference is expressly had to the accustomed forms and usages. This seems to be a part of the code on which the compilers bestowed very little labor, as they have omitted to digest and insert in the compilation a great part of the regulations which are recognised by the code itself as being in force.

The above laws supply an ample store of provisions on the subject of insolvency, by the introduction of some of which, we have no doubt, those of the several states might be improved. An examination of them will also facilitate a comparison and analysis of those of our states, to the consideration of which, particularly those of the recent New York revised law, we intended to have proceeded in this article, but the length to which we have already drawn out the subject, makes it necessary to stop at present. We intend to continue it in our July number.

ART. III.-PROBATE LAWS.

1. The Probate Laws of Massachusetts, digested and arranged; comprising the subjects of Wills, Devises, Legacies, Dower, Descents, and Distributions, &c. With an Appendix of Forms. By WILLIAM BLAIR, Counsellor at Law. 1829.

2. The Probate Directory, or a Complete System of Forms for the use of Probate Courts; together with Directions for Proceedings in the various stages of administering and settling Estates, according to the existing laws of New Hampshire, and containing the substance of the Probate Laws of Massachusetts and Vermont, and adapted to the practice in those states. By a Counsellor at Law. Concord. 1829. A history of the law of Massachusetts is still a desideratum. And in no branch of jurisprudence would it prove more

useful than in the application of the rules of descent or distri⚫bution of property upon the decease of its owners.

In some of our literary journals, will be found dissertations, or rather conjectures on its progress during the first years of the organization of civil society on these shores; but the mist with which time has enveloped it, has not been dispelled. The materials for its compilation were early scattered, and but few authentic relics or original memorials remain to shed their unerring light on the subject. Had a parallel been attempted between the laws of England and those of the colony, as they were from time to time compiled, with the reasons of the variation, in the manner in which it was done in 1646, at the period of the faction of Dr. Childs, we should have been able to have traced the cause of most of the differences between them which exist at this day.(a) The jurist and the antiquary must now indulge in their regrets; the vain wish cannot be gratified.

To every inquirer into our history, the question is presented, by what authority were laws established and administered by the first settlers? Some writers have considered the authority as resting upon the necessity which the emigration gave rise to others, on the implied powers derived from the colony charter.

It has been contended that the charter was originally destined solely for the establishing of a corporation in England; and not for the government of a foreign territory; that its transportation across the Atlantic was in itself a forfeiture of it;-while, by others, it has been denied. What would be the legal consequences of such a measure was well considered by the grantees, when, in 1629, a number of their distinguished associates contemplated an embarkation. A committee was appointed to consult with counsel; their report, says Hutchinson, is not on record; but the opinion of Mr. White, one of the company, and a counsellor at law, was adopted, 'that the government and patent might be settled in New England." Whether it went to the extent of holding that the charter authorized the removal and use of the patent here, or gave only a license to the adventurers to depart from the kingdom, and on their arrival in America it would leave them, by necessary implication, to govern themselves according to the common

(a) We have recently understood that this parallel or declaration, as the court termed it, is to be found on the files in the office of the Secretary of State, and trust that it will be made public.

law, so far as it suited their circumstances,-must rest in doubt. The former was probably the ground on which the majority of the company proceeded, and the latter, that upon which they acted after making the settlement.

The King's Bench, however, in six or seven years after, did not accord with them; and upon a quo warranto in 11 Car. 1, decreed the charter forfeited. The allegations were 'because Sir Henry Rosewell' (and all the Massachusetts Company,) used &c. in several ports beyond seas, out of this kingdom of England, without any warrant or royal grant, the liberties, privileges, franchises, &c. following:' and among others 'to transport out of England, beyond seas, his Majesty's subjects and others, and them, at their will, to govern,' &c.

The consequence of these proceedings was, that in April, 1638, the privy counsel directed an order to be issued by the Lords Commissioners for foreign plantations, to Mr. Winthrop, ' requiring and enjoining said Winthrop, or any other, in whose power the said letters patent were, that they fail not to transmit the said patent letters by the return of the ship.' A compliance with this order was evaded. And as the patentees out of England were not summoned, it was considered by the colonists that no binding judgment had been rendered against them. Winthrop's Journal, vol. 1. p. 274.(a)

From several passages in Winthrop's Journal, it would seem that doubts sprung up in the minds of the magistrates as to their powers; for in 1639, when they finally gave way to the deputies in consenting to frame a body of laws, the motives assigned by Winthrop as those by which they had been actuated, in opposing the project, were, 1. That they had not had sufficient experience as to what laws would be best fitted for their new condition; and, 2. That it would professedly transgress the limits of our charter, which provides we shall make no laws repugnant to the laws of England;' and he proceeds to observe, that to raise up laws by practice and custom, had been no transgression, as in our church discipline, and in matters of marriage, &c.'

What weight these scruples had is uncertain; the desire of retaining discretionary power in the hands of the assistants was unquestionably of some force. We find that criminal

(a) It was so viewed in the reign of Charles II., unless the former reversal was forgotten, for a new quo warranto was then filed; the writs of scire facias served here; and another judgment of forfeiture rendered.