40 Body and Property not available at the same time.

The law has always considered the creditor's remedy against the body of his debtor as the highest security, and therefore it is only by the statute (21 Jac. c. 24) expressly framed for that purpose, that the creditor of a defendant in execution, dying in prison, could have a further remedy against the land and goods of the defendant; and as in practice it is considered that no plaintiff can have any further process after the debtor has been once taken however, be fairly contested, the court will direct an issue to try it, and enlarge the rule for setting aside the judgment in the mean time. So, if it be alleged that the warrant of attorney is forged or the like, the court will direct an issue to try whether it has been duly executed or not. But where a joint warrant of attorney had been altered after the execution in the christian name of one of the parties, who had reexecuted the same without the knowledge of the other, the court refused, on the application of the former, to set aside the judgment which had been signed thereon. Also, if a warrant of attorney be given by an infant, the court will order it to be delivered up to be cancelled, even although there may be circumstances of fraud on the part of the infant. But if an infant and another join in a warrant of attorney and judgment be entered up against both, the judgment may be vacated as to the infant and remain good as to the other. So if a feme covert give a warrant of attorney, the court will order it to be delivered up to be cancelled or will set aside the judgment, &c. the warrant in such a case being absolutely void; and on motion the court set aside a judgment on a warrant of attorney given by a feme covert, although she had been divorced a mensa et thoro; yet the court have refused to relieve her where, at the time she executed the warrant, she lived by herself and acted as a feme sole. Also where one of several executors gave a warrant of attorney to confess a judgment against all, the court ordered it to be delivered up to be cancelled. If the warrant be not altogether void, but good as to part and bad as to the residue, the court will only destroy the effect of the bad part. The court, in general, give the successful party his costs. (Archbold's Practice, ed. 1838, p. 238, and the cases there cited.)

in execution, the present act provides that judgment creditors, having obtained a charge upon the property of the debtor or being entitled so to do, taking the debtor in execution are to be deemed by such act to relinquish every right or benefit they may have of such charge or security, and forfeit the same accordingly, s. 16.

No notice is taken in this act of a certain process upon which a debtor may be taken, and all his goods seized and land extended-viz. the " commission," which issues out of chancery upon a recognizance, in the nature of a statute staple, generally known by the name of a "statute." This obligation, which is a matter of record, is founded upon the statute of 23 H. 8, c. 6, and is acknowledged by a debtor or borrower of money, before one of the Chief Justices or Recorder of London, and enrolled in chancery or with the clerk of recognizances in London, if the debtor is a citizen. The debtor is termed the conusor, and the creditor the conusee. This "pocket record," as it has been termed, is after the day named therein for payment, certified into chancery, and thereout is issued a "commission" or writ, directed to the sheriff of the county where the debtor's lands and goods lie, for extending the same, i. e. valuing of the same by a jury, which lands and goods are to be delivered to the plaintiff at the valuation of the jury, till the plaintiff be satisfied his debt and damages. Land is not charged by a statute till it is enrolled, which must be within six months, pursuant to the statute 27 Eliz. c. 4, but by the terms of the present act, sect. 18, it is not required to be registered, and consequently may affect lands, although it does not appear in the registries before alluded to.

There are also simple recognizances which ope

42

Insolvency.

rate by the writ of scire facias, upon which the ordinary execution issues by levari * or fieri facias against the goods, or by elegit against the goods and half the land; execution may also be obtained against the body by the course of practice. The most ordinary recognizances are those of bail in civil or criminal cases for appearance at sessions, &c. &c. The use of a simple recognizance for mere debts between contracting parties is in disuse. III. The third object this Act has in view, is the amending the laws for the relief of insolvent debtors in England." The law of insolvency, as it now exists, was introduced eighteen years since, but its principles were extended and settled by the 7 Geo. 4, c. 57, which assimilated the provisions of that Act to those of the Bankrupt Acts in respect of property passing to or recoverable by the assignees, in addition to those clauses which gave to creditors rights against the debtor's future property, rights recognized under the administration of the bankrupt law but in two instances, viz., where the bankrupt does not obtain his certificate or has previously been bankrupt or insolvent, or compounded without paying 15s. in the pound, and those rights not rendered available by remedies equally efficient with those afforded to creditors under the system of insolvent law.

By the present statute the operation of these principles is materially enlarged; and to prevent a conflict of rights the provisions in the late Act which subjected the body of the debtor to the judi

*The writ of levari facias is much the same in form as fieri facias, and has much the same meaning-it is used in outlawry where the lands are seized, and in county courts where the goods are seized, it is also used in exchequer processes upon forfeited recognizances.

Court of Insolvency.

43

cature of the court of insolvency in cases where his estate is divisible or controlled by the court of bankruptcy, are re-enacted; and as relief to the debtor was always within the scope of those enactments, bankrupts in custody or uncertificated can be discharged from prison, although the property of such persons cannot be administered in the Insolvent Debtors' Court as being vested in the assignees under the bankruptcy.

The constitution, but especially the practice of the Insolvent Debtors' Court, which affects a vast multitude of individuals, and is necessarily governed by minute and technical rules, can but be cursorily noticed in a treatise like the present, and must be confined within the following observations, viz. :—

The powers of "The Court for Relief of Insolvent Debtors in England," vested in them by the last general Act of the 7 Geo. 4, c. 57, are continued for the specific purposes of disposing of the petitions or matters theretofore pending, and such court, as newly constituted, is declared to be a court of record (consequently invested with the power of inflicting fine and imprisonment) and to consist of the present chief commissioner, and the three commissioners permanently appointed, the vacancies by death to be filled up by the appointment of other persons, who must be barristers of ten years' standing. The principal officers of the court are the chief clerk and the provisional assignee.

The court sits at the court house in Portugal street, Lincoln's Inn Fields; and with the exception of the long vacation, wherein the commissioners may regulate their sittings, so as they do not adjourn longer than six weeks, they are re

44

Voluntary Petition

quired to sit at least twice a week throughout the year. The commissioners are also required severally to make circuits through England and Wales thrice a year, if necessary;* the time and manner resting with themselves, subject to the approval of the secretary of state, who may also appoint a commissioner in case of his illness to execute the office. One commissioner also may, out of court, upon summons, hear and dispose of applications upon matters incident to the general jurisdiction of the court, the hearing, re-hearing or examination of an insolvent being matters requiring an investigation in public, are excepted. The process of the court may be termed either voluntary or compulsory.

Voluntary Process or Petition of an Insolvent.†

Any debtor in actual custody, i. e., not within the rules of a prison, but confined ‡ in some one

* In those counties and places to which the circuit does not extend, and in the town of Berwick-upon-Tweed, the hearing of insolvents takes place before justices of the peace.

"Insolvent," in the general acceptation of the word, is a term applied to designate any one who is unable to perform his engagements with his creditors, and a declaration of this fact made by any trader so circumstanced, and published in the London Gazette is an act of bankruptcy, 6 Geo. 4, c. 16, s. 6; but in its more restricted and legal sense it means a person under actual imprisonment for any species of debt, and for that only, is rendered subject to the insolvent laws, either voluntarily or compulsorily.

The confinement must not only be actual, i. e. within the walls of the prison [see post, p. 47], but must be boná fide, i. e. not collusive or "friendly," in plain English, fraudulent; for the court will dismiss the petition of a person applying for liberation under such circumstances. The