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the county of Middlesex, twenty days at the least are allowed by those Acts for the entry to be made, and of course a purchaser can never ascertain from them, that the land is not liable to any judgment debt.
On the other hand, the creditor must make in all cases one, and to affect lands in Middlesex and York two entries, in order to secure his lien on a moiety of some lands, and to secure a charge on the whole he must make two or three, as the case may be. But even this will not secure him in all cases. A proviso was added in the House of Commons, by which a purchaser without actual notice is to be protected in equity as before; so that a creditor can in no case make sure of the fruits of his judgment out of such lands as cannot from their nature be extended at law. For the entry prescribed by this Act, which, as it appears, does not secure his debt, nor the want of which protects a purchaser, he is to pay the excessive fee of five shillings.
Lastly, the writ of elegit, except so far as it is to be altered so as to embrace all the property made liable by this Act, must be in the form prescribed by the Statute of Westminster 2. Before the lands, therefore, can be touched, the creditor must take all the goods and chattels
which the sheriff can find, except oxen and beasts of plough, at the capricious valuation of a jury chosen from the spot, for the sheriff cannot sell them, and hold the lands only for the residue. There is a power given to the Courts to frame new writs; but, as the enactment is worded, the Editor ventures a strong opinion, that it does not extend to an alteration in that branch of the writ of elegit.
The subsequent provisions relating to insolvent debtors, which occupy ninety-eight sections, are imported from the expired Act, without a single alteration having reference to the changes made by the preceding enactments, or tending to the correction of some known and adjudged defects. Professing to effect an equal distribution of the insolvent's estate it leaves a judgment creditor full power over his real as well as ecclesiastical property, out of which he may procure payment of his debt in full. And what is equally remarkable, while estates tail are disposable by the assignees of a bankrupt, and now liable to a judgment both at law and in equity, they are not within the disposition of the assignees of an insolvent.
These, amongst other points, the Editor has endeavoured to show in the following notes, as well as to suggest the interpretation and effect of the principal enactments, both with regard to the law and the practice.
There is one enactment which has excited more discussion than, except for the principle of it, it is really worth. The proprietors of newspapers are required to insert all advertisements relative to an insolvent's estate for the sum of three shillings, but no penalty is annexed to a disobedience. What insolvent will venture to prefer an indictment, upon which the Court will probably inflict a nominal fine, and leave him to pay his own costs?
If he bring an action, mould it how he will, the measure of damages will be the excess paid, and if this be under forty shillings, he recovers no more than that sum for his costs. The enactment will be perfectly innoxious. It is not the best mode of securing respect for the laws, to ordain that which cannot be enforced.
FOR THE ABOLITION
IMPRISONMENT FOR DEBT
ON MESNE PROCESS,
1 & 2 Vict. c. 110. An Act for abolishing Arrest on Mesne Process
in Civil Actions, except in certain Cases ; for extending the Remedies of Creditors against the Property of Debtors ; and for amending the Laws for the Relief of Insolvent Debtors in England.
[16th August, 1838.] I. WHEREAS the present power of arrest upon mesne process is unnecessarily extensive and severe, and ought to be relaxed : be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, that from and after the time appointed for the commencement of this Act no mesne properson shall be arrested upon mesne process in cessabolishany civil action in any inferior Court whatsoever, in certain or (except in the cases and in the manner here- cases. inafter provided for) in any superior Court.