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securities for payment of money, for the benefit of the judgment creditor; 2ly, in subjecting the whole of the debtor's lands, of every quality, quantity, and tenure, to the payment of the judgment debt, either by sale through the medium of a Court of Equity, or by appropriation of the rents and profits by means of an execution at law; and 3ly, by enabling the creditor to obtain a charge on stock in the funds or shares in a public company, and eventually to sell the same for payment of his debt.
The third branch consists for the most part of a re-enactment of the provisions of the late Act for the Relief of Insolvent Debtors. There
some few alterations, however, which deserve especial notice. The most important is, the power given to a detaining creditor to bring up the debtor before the Court, and compel a surrender of all his property for distribution, in the same manner as if he had petitioned for his discharge ; and all the provisions of the Act are designed to apply as well to the one case as to the other. This power is given of course only to judgment creditors, and it cannot be exercised until the prisoner has been twentyone days in confinement, and has thus committed an act of bankruptcy.
Another amendment, which is borrowed from
the late Bankrupt Act, and which is certainly valuable, is the substituting an order of the Court, for the conveyance and assignment required, in order to pass the property, under the expired Act. This will relieve the estate of considerable expense, and get rid of
many technical difficulties.
With respect to assignees, they are no longer required to be selected from amongst the creditors, and the Court is authorized, for the first time, to allow them a remuneration out of the insolvent's estate, at a rate not exceeding 5 per cent. This is an advance towards the system adopted by the Bankrupt Laws, and will perhaps lead, in course of time, to the appointment of official assignees.
The compulsory clauses of the Lords' Act were too narrow to be of any material benefit, and they are repealed, as well as those which enable the debtor himself to apply for relief.
There is an improvement in the regulations for making dividends, and securing the estate from mismanagement by the assignees; the Circuits of the Commissioners are extended to the Principality; and, lastly, the Insolvent is not required to state in his petition whether he has been declared bankrupt, or had the benefit of a prior discharge; nor is there any limitation
as to the time within which he may again avail himself of the benefit of the Act.
The Act also provides a substitute for certain acts of bankruptcy, which can seldom be committed after the 1st of October.
It could scarcely be expected that a statute embracing so many and extensive alterations in the Law of Debtor and Creditor should be found at once perfect. Many alterations may become requisite after the Act has come into full operation, which cannot be suggested from a bare perusal; but there are some defects in the present Statute, which appear at once, and which seem likely to require the early aid of the Legislature. They proceed not so much from what it does enact, as from what it does not.
In the first place, it does not repeal any preexisting Act. This, in a statute intended to effect so many alterations in the Law, is always to be regarded as an evil. The repeal of an Act of Parliament should never be a question of construction. Wherever a subsequent enactment conflicts with a preceding one, there must be pro tanto a repeal; but the precise measure is often so difficult to be ascertained, that few persons are inclined to give up a supposed right without bringing the question before the Court; and every variation of circumstance in a subsequent case invites new litigation. On the other hand, if it does not conflict, if there is nothing repugnant between the two statutes, the latter frequently, if not generally, fails of its object.
This seems to be the principal fault in the present Act. For want of repealing the 7th section of the 7 & 8 Geo. IV. c. 71, this inconvenience follows;--that if a person, who is sued in the Courts at Westminster for a debt under 501., happens at any stage of the proceedings before final judgment to reach Liverpool in order to quit the country, the plaintiff must, in order to arrest him, forego all the expense he has incurred, though he has obtained an order, and sued out writs into several counties. But this is not all: he must first send to Preston for a Writ of Summons, then obtain a fresh order upon fresh affidavits from a Judge in London, and then again send to Preston for a Writ of Capias. So that as to him the power of arrest is almost nugatory. This, indeed, was the case before, but the inconvenience was not felt, because he might, and probably would have, arrested in the first instance; and if he did not, he might have obtained a writ from the Court of Lancaster, as a matter of course and without loss of time.
This omission affects the second branch of the Act in a greater and still more mischievous degree. Having made a Judgment a standing lien on all the real property of the Debtor, the Act professes, justly, to provide the means of giving publicity to the charge, in order to prevent purchasers and mortgagees from being imposed upon, and creditors from being misled, by a false appearance of responsibility. But the old securities, which are equally binding on the land, established by the statutes of 13 Edw. 1, 27 Edw.3, stat. 2, c. 9, and 23 Hen. 8, c. 6, as well as the Common Law recognizance, are not required to be so registered; and how few purchasers at the present day think of resorting to the office where these rolls are kept. Again, even the entry of a Judgment is not made compulsory. The old Writ of Elegit, given by the Statute of Westminster the Second, may still be executed on a moiety of the debtor's freehold, in whosoever hands it might be, and out of this moiety the creditor is entitled to levy his whole debt. Hence a search in this book can, in very few cases, satisfy a purchaser.
The statute 4 & 5 W. & M. c. 20, also remains in force, by which a judgment must be docketed in order to bind the lands; but as this may be done at any time within two terms, a search in that book is not enough.
The Registry Acts also remain, but, except in