debtors. It is from the class of unfortunate creditors that the ranks of really unfortunate debtors are chiefly recruited. For if a trader unexpectedly fails in obtaining payment of the debts due to him, he may be obliged unexpectedly to disappoint others of the debts he owes. The law, however, has not yet imposed any effectual check on reckless or dishonest trading. No means have been afforded of immediately putting a stop to a career of dishonesty the moment it is discovered. The creditor who wishes to make a dishonest debtor a bankrupt, must first find means to serve him personally with notice requiring payment; and when this has been done, a fortnight must still be occupied in the process of making him a bankrupt (e), during which time the bulk of his property may be realized and made away with. He has ample opportunity to wind up his own affairs, in spite of his creditors, with all the safety and assurance of an honest man. If at the expiration of the fortnight his conscience will allow him to take a false oath, he may elude the law by swearing that he verily believes he has a good defence to the creditor's demand, without adducing any evidence of the grounds on which such belief is founded. If however he become bankrupt and surrender, he becomes entitled of right to freedom from arrest and imprisonment; and however bad his past conduct may have been, the court has no power to deprive him of this privilege. For all this the innocent suffer. The honest man is made a bankrupt, and endures the opprobrium which the misconduct of others has cast upon that name, because it is known that no fraud on his part will prevent all that he has from being effectually squeezed out of him; whilst the known rogue makes his own terms, and is let off with a fraudulent and insufficient composition. It is the interest of his creditors to accept the composition, and wink at the fraud, rather than incur the expense and risk of assert(e) See ante, p. 110.

ing their just claims under the present system of bankruptcy. It is to be hoped that the earnest remonstrances of the trading community will at length secure the attention of the legislature (f). Those who practically know and feel the evils of the present system are surely entitled to consideration. And if some of the remedies they suggest should be considered stringent, let it be remembered that they are proposed by men themselves within the bankrupt laws, and who well know that possibly, by adverse fortune, they may become individually subject to their operation.

(f) A statement will be found in appendix A. of some of the measures proposed by the Metropolitan Committee appointed at public meetings of merchants,

bankers, and traders of the city of London, for the purpose of obtaining an amendment of the law of bankruptcy and insolvency.

Stat. 1 & 2 Vict. c. 110.

CHAPTER V.

OF INSOLVENCY.

INSOLVENCY, strictly speaking, means a general inability to meet pecuniary engagements (a). But the term is very commonly and conveniently applied to the means of getting rid of such engagements afforded by certain acts of parliament which have passed for the relief of insolvent debtors; and in this latter sense the term is here intended to be used.

The principal act for the relief of insolvent debtors in England is the statute 1 & 2 Vict. c. 110, the former sections of which are, however, occupied in abolishing arrest on mesne process in civil actions, and in extending the remedies of judgment creditors against the property of their debtors. So far as the act relates to insolvent debtors it is, for the most part, a reprint, with some important additions, of a previous statute for the same purpose (b), by which the laws then existing on Discharge from the subject were amended and consolidated. The relief prison.

afforded to the debtor is his discharge from prison; and the act accordingly only applies to persons in actual custody within the walls of a prison in England. Any such person in custody upon any process whatsoever, for or by reason of any debt, damages, costs, sum or sums of money, or in consequence of contempt of any court whatsoever for non-payment of money or costs, taxed or untaxed, may at any time within the space of fourteen days next after the commencement of his actual custody,

(a) Biddlecombe v. Bond, 4 Adol. & Ell. 332.

(b) Stat. 7 Geo. IV. c. 57,

continued and amended by stat. 11 Geo. IV. & 1 Will. IV. c. 38.

or afterwards by permission of the court, apply by petition to the Court for the Relief of Insolvent Debtors for his discharge from such custody, according to the provisions of the act (c). In the country the petition is now referred for hearing to the County Court of the district within which the insolvent is in custody (d). The insolvent himself was formerly the only person who could put the machinery of the act in motion; but now the creditor at whose suit the prisoner is committed to prison or charged in execution may, if not satisfied within twenty-one days next after such prisoner shall be so committed or charged in execution, himself petition the court for his share of the relief (e), which consists in the real and personal estate and effects of the prisoner being vested in the provisional assignee of the court for the benefit of his creditors.

On the filing of the petition either of the debtor or of Vesting order. the creditor, a vesting order, as it is termed, is made by the court. By this order all the real and personal estate and effects of the prisoner, both within this realm and abroad (except his wearing apparel, bedding and other such necessaries of himself and his family, and his working tools and implements, not exceeding in the whole the value of twenty pounds), and all the future estate to which he may become entitled until his final discharge, are vested in the provisional assignee for the time being of the estates and effects of insolvent debtors in England (ƒ). The court may subsequently appoint Assignees. any proper person or persons to be assignees of such

gyman.

Officer.

estate and effects, in whom the same will accordingly vest on the acceptance of the appointment being signified by him or them to the court (g). The estate and effects of the prisoner are then sold and converted into money by the assignees in the manner directed by the act (h). And the court has power to order that any property of the prisoner may be mortgaged, instead of being sold, if it shall appear to the court that his debts Beneficed cler- can be discharged by such means (i). If the insolvent be a beneficed clergyman, the assignees may obtain a sequestration of the profits of the benefice for the payment of his debts (k). And if the insolvent be or have been an officer under government, or in the service of the East India Company, a portion of his pay, half-pay, salary, emoluments or pension, may, with the written consent of the chief officer of the department to which he belongs or may have belonged, be ordered to be paid to the assignees (1). The produce of the insolvent's estate is then divided by the assignees rateably amongst Voluntary pre- the creditors (m). And if any prisoner shall before or after his imprisonment, being in insolvent circumstances, voluntarily convey, charge or make over any of his estate to or in trust for any creditor or creditors, every such transaction is declared to be fraudulent and void as against the assignees, if made within three months before the commencement of the party's imprisonment, or with the view or intention on his part of petitioning the court for his discharge under the act (n).

ference.

The schedule,

Within fourteen days next after the making of the vesting order, or within such further time as the court