the suit of one or more of the creditors, for a time not exceeding six months (u). But in every case in which the insolvent is thus subjected to a continuance of his imprisonment, he is entitled to receive an allowance, not exceeding 4s. a week, from the detaining creditor or creditors (v).

While the insolvent thus obtains the discharge of his person from custody, his property, which, by force of the provision before stated, has become vested in the assignees (x), is accordingly divisible from time to time among his creditors, as soon as there is money in hand sufficient for the purpose (y). If the dividend take place before the adjudication of discharge, it is made among all such creditors as shall prove their debts; if it be subsequent to the adjudication, then among all those whose debts shall be either proved or admitted in the schedule; with power to the court, in every case, to inquire into disputed claims, and either to reject, allow, or modify them, as the state of evidence may require (z).

The property which passes to the assignees in trust for the creditors, by force of the vesting order, and which is thus distributable in the first instance among them, comprises only what may have accrued to the prisoner prior to his discharge from custody. But the policy of the insolvent law is to extend its grasp even to his after-acquired estate, the benefit designed for him by this system being chiefly that of relief from corporal durance; and the right of his creditors being in other respects assiduously main

(u) 1 & 2 Vict. c. 110, s. 76. See Turnor v. Darnell, 5 Mee. & W. 28; Growcock v. Waller, 11 Ad. & El. 165. The power vested in the court, in this case, is generally termed the "discretionary power," Cooke's Insolvent Law, p. 233.

(v) 1 & 2 Vict. c. 110, s. 86. (x) By 19 & 20 Vict. c. 120 (s. 36), the assignees are entitled to avail themselves of the provisions

which that act has made for facilitating leases and sales of "settled estates."

(y) As to the revesting of the insolvent's property, after a discharge by detaining creditors without adjudication by the court, see Grange v. Trickett, 2 Ell. & Bl. 395; Kernot v. Pittis, ibid. 406.

(z) 1 & 2 Vict. c. 110, s. 62.

tained and protected. With this view it is provided, that before any actual adjudication of his discharge from imprisonment (a), he shall execute a warrant of attorney (which is a species of security in frequent use between debtor and creditor in other cases), authorizing a judgment to be entered up against him, in favour of the assignee, in one of the superior courts at Westminster, to the amount. of the debts stated in the schedule (b). The judgment so entered is to have the effect of a recognizance (c); and if at any time it shall appear to the court that the insolvent is of ability to make a payment towards the discharge of his debts, or is dead, leaving assets for the purpose, it may permit execution to be taken out on the judgment for such sum of money as, under all the circumstances of the case, may appear fit, and order the amount so levied to be rateably distributed among the creditors, in the same manner as the fund originally divisible (d). An order may also be made from time to time, upon petition of creditors, to compel the insolvent to transfer to the assignees, for the benefit of his creditors, all such after-acquired property as, from its being invested abroad or for any other reason, is not capable of being taken in execution; and any persons who after his discharge become indebted to the insolvent, or are trustees for him, are also compellable, by order of the court, to withhold such debts or trust property from him, and to deliver or pay the same over to the assignees (e). For the more effectual security of the creditors, the insolvent may also be called upon by order of the court, even after his discharge, to submit to further examination, on oath, relative to his estate and effects, in every case in which such a proceeding may become necessary, to enable the assignees more effectually to discover and realize the property (ƒ); and he is also liable, in every case

(a) 1 & 2 Vict. c. 110, ss. 75, 87. (b) Ibid. s. 87.

(c) As to recognizances, vide vol. 1. p. 308, et sup. p. 141.

(d) 1 & 2 Vict. c. 110, s. 87.
(e) Ibid. s. 89.

(f) Ibid. s. 98.

where the court shall have reason to believe that the adjudication of discharge has been made upon false evidence, or otherwise improperly obtained, to be again brought up for a rehearing, the result of which may be an annulment of the former adjudication, and the remand of the insolvent to the original custody (g). Subject, however, to these provisions, a discharge under the Act is final and conclusive, and subject to no appeal; and for ever exempts the insolvent from liability to imprisonment, in respect to any of the debts to which the adjudication relates (h), and even from liability to any action, or execution on his property, so far as those debts are concerned, except only such execution as the court may think fit to direct upon the judgment entered up on the warrant of attorney, pursuant to the directions of the Act (i). There is, however, a proviso, that, as to crown debts and those contracted for offences against any act of parliament relating to the public revenue, the discharge shall not be effectual without the consent of three of the lords of the treasury, or (according to circumstances) an order of her Majesty's Court of Exchequer, or some baron thereof, to be made upon a hearing and examination of the case (k).

From the account given in this chapter, the reader will have been enabled to obtain some insight into the nature of the two distinct, but analogous, and in some sense rival systems, established in this country, under the different

(g) 1 & 2 Vict. c. 110, s. 96. (h) Ibid. s. 90.

(i) 1 & 2 Vict. c. 110, s. 91. See Ford v. Dornford, 8 Q. B. 583. A discharge, however, under the insolvent acts does not bar any collateral remedy which the creditor may have, -as a lien or right to distrain (Phillips v. Shervill, 6 Q. B. 944); or a petition to the Court of Bankruptcy in respect of the same debt (Wat

son v. Humphrey, 10 Exch. 781). As to the effect of the discharge with reference to a commitment order in the County Courts, see 9 & 10 Vict. c. 95, ss. 98, 99, 102 (the last is partly repealed by 19 & 20 Vict. c. 108, Sched.); Abley v. Dale, 11 C. B. 378; George v. Somers, 16 C. B. 539; Christie, In re, 4 Ell. & Bl. 714.

(k) 1 & 2 Vict. c. 110, ss. 103, 104.

denominations of the bankrupt and insolvent law; and will have perceived in what manner they were respectively introduced, and allowed to grow up together. He will have collected, that these systems are so far in alliance, that they both apply themselves to the common object of transferring an insolvent debtor's estate for the benefit of his creditors at large, and conferring on him in return some compensatory immunities; but that they proceed, nevertheless, on different principles. He will also have observed the nature of the differences between them, which may be said to consist, chiefly, in the following particulars,—that the law of bankruptcy is confined to persons engaged in trade, while that of insolvency extends to all classes of persons without distinction; that the bodily imprisonment of the debtor is not under the former required (nor in general even permitted) during the proceedings in bankruptcy, but for a limited period at least is essential under those in insolvency; and that while under the bankrupt law he may obtain, both as to his person and future property, an absolute discharge from all his existing debts, he gains, under the insolvent law, a discharge from them only as concerns his person, and one that extends not to his future property. To apply methods so different to the same case (for insolvency is in both instances the predicament substantially provided for) has by some persons been deemed highly unreasonable: and suggestions have consequently been made for improvement of this part of our jurisprudence, by extending to all debtors, without distinction, the principles of the bankrupt law; and laying aside, as to all, the practice of personal arrest. By others it is, on the contrary, maintained, that this practice is one of incomparable efficacy, for the discovery of property and the repression of fraud; and that the indulgences of the bankrupt law were properly confined by the policy of our forefathers to that class who have been exposed to the casualties of trade; and whose embarrassments may, therefore, by fair presumption, be imputed to unavoidable mis

fortune. A large advance however has now been made in the direction of the former opinion, by acts of parliament of recent date, viz. 5 & 6 Vict. c. 116, and 7 & 8 Vict. c. 96 (1). By these it is provided, that any person not being a trader, or being a trader with debts not amounting to £300, may, without the necessity of first submitting to any incarceration, as under the General Insolvent Act before mentioned, present a petition to the Court of Bankruptcy in London, or in a district (as the case may be), annexing an account or schedule of his debts (m) and property (n), and praying for protection from process; a "final order" for which protection, in respect at least of the debts named in his schedule (o), he shall be entitled to obtain, if it shall appear to the court, upon such examination into the matter as the Acts direct, that he has given a true account, and made a full discovery of his debts and property; and that his debts were not contracted by fraud or breach of trust, or by conviction for any offence; or by reason of a judgment against him in an action of breach of promise of marriage, or for such malicious injury as in the Acts particularized; and that they were not contracted without a reasonable or probable expectation at the time that he should be able to pay them;-and also that he has not parted with any of his property since presenting the petition (p). And on the other hand it is enacted, that, by force of such petition and the proceedings thereon (q), all the property of

(1) These statutes are commonly called "The Protection Acts."

(m) As to what are considered debts within this provision, see Thompson v. Whatbey, 20 L. J. (Q. B.) 86.

(n) If he has no property, the insolvent may still present his petition; Laurie v. Bendall, 12 Q. B. 634.

(o) See Phillips v. Pickford, 1 L. M. & P. 136; Brook v. Chaplin, 4 Ell. & Bl. 835; Hookpayton v. Bussell, 9 Exch. 279.

(p) 5 & 6 Vict. c. 116, ss. 4, 10;

7 & 8 Vict. c. 96, s. 22. And see Gillon v. Deare, 2 C. B. 309; Toomer v. Gingell, 3 C. B. 322; Tyler v. Shinton, 8 Q. B. 610; Miles v. Pope, 5 C. B. 294; Jacobs v. Hyde, 2 Exch. 508; Platell v. Bevill, 6 D. & L. 2; Beavan v. Walker, 12 C. B. 480.

(q) As to the right of action on debts to the bankrupt becoming due after petition and before final order, see Sayer v. Dufaur, 11 Q. B. 325. See also Lewis v. Harris, 11 Q. B. 724.