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292 Some Remarks on the Writ of Habeas Corpus, &c.

ought to be regarded as proceeding. It is, however, essential to look narrowly at any reported decision with reference to this precise point, before attempting to draw from it any inference. Again, the writ itself will issue not of course, but on reasonable ground shown by affidavit, and will vary somewhat in form, according to the circumstances under which the detention or imprisonment complained of has occurred. Nor, when once issued, will the writ be quashed for matter which can properly be returned to it. Assuming that it is regular, the ground of detention must be set forth in the return: if insufficient or manifestly false, the return must be quashed, and the prisoner will be discharged; or, if the facts justify such a course, an attachment will be allowed to issue against the party making the return. It may, perhaps, be said, and would undeniably be true, that the absence of a right of traversing the return to a writ of habeas corpus detracts-in practice somewhat-in theory very considerably-from its efficacy as a remedial process; and yet, though defective as a remedy in some respects it be, in this writ, known only to us and to our brethren of the United States of America, we think we recognise the surest safeguard for the subject against the licence of the Crown-the most obvious and approved pledge for the observance of that duty which is imposed on our judges by those memorable words of Magna Charta-nulli vendemus, nulli negabimus, aut differemus, justitiam vel rectum-justice shall neither be delayed, denied, nor sold, but shall be administered impartially to all.

ART. IV. PERSONAL PROTECTION ACQUIRED THROUGH BANKRUPTCY AND INSOLVENCY.

Remarks on the Right of Personal Protection acquired through Bankruptcy and Insolvency, and the Contempt of it by certain County Courts. By William John Law, Esq., Her Majesty's Chief Commissioner for the Relief of Insolvent Debtors.

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HE question here treated is one of the deepest importance, and has for some time past attracted attention, though without receiving adequate consideration. In the publication before us, the true premises on which it rests are sought out and set in order. On such a subject the learned commissioner, of all others, has a right to speak, and to him the highest will listen. A great portion of his life has been laboriously devoted to the construction, improvement, and administration of the bankruptcy and insolvency laws of this country, and to him also both Ireland and India may be said to owe their code. His intellectual capacity and acquirements, his unwearied industry, his resoluteness and integrity of purpose, are too well known to require any comment from us; and his opinions, made public, have peculiar authority, and command the attention of the profession.

The question in dispute arises on the 98th, 99th, and immediately following sections of the 9 & 10 Vict. c. 95-the County Courts Act of 1846-under which judgment creditors may, on judgments recovered in the County Court, and remaining unsatisfied, summon the debtor before the County Court judge of the district in which the debtor dwells or carries on his business, and, on certain grounds specified in section 99, procure his committal to prison. Section 98 provides, that it shall be lawful for any party who has obtained any unsatisfied judgment or order in any Court held by virtue of that act, to summon the debtor, and gives the judge power to examine both debtor and creditor, and all other witnesses he may think requisite, touching his (the debtor's) estate and effects, and the manner and circumstances under which he contracted the debt, or

incurred the damages or liability which is the subject of the action in which judgment has been obtained against him, and as to the means and expectation he then had, and as to the property and means he has, at the time of the application, of discharging the said debt, or damages, or liability, and as to the disposal he may have made of any property. And section 99 furnishes the power and grounds of committal, being in the terms following :—

"And be it enacted, that if the party so summoned shall not attend, as required by such summons, and shall not allege a sufficient excuse for not attending, or shall, if attending, refuse to be sworn or to disclose any of the things aforesaid, or if he shall not make answer touching the same, to the satisfaction of such judge; or if it shall appear to such judge, either by the examination of the party, or by any other evidence, that such party, if a defendant, in incurring the debt or liability which is the subject of the action in which judgment has been obtained, has obtained credit from the plaintiff under false pretences, or by means of fraud or breach of trust, or has wilfully contracted such debt or liability without having had at the same time a reasonable expectation of being able to pay or discharge the same; or shall have made, or caused to be made, any gift, delivery, or transfer of any property, or shall have charged, removed, or concealed the same, with intent to defraud his creditors, or any of them; or if it shall appear to the satisfaction of the judge of the said Court, that the party so summoned has then, or has had since the judgment obtained against him, sufficient means and ability to pay the debt, or damages, or costs so recovered against him, either altogether, or by any instalment or instalments which the Court in which the judgment was obtained shall have ordered, and if he shall refuse or neglect to pay the same as shall have been so ordered, or as shall be ordered pursuant to the power hereinafter provided, it shall be lawful for such judge, if he shall think fit, to order that any such party may be committed to the common gaol or house of correction of the county, district, or place in which the party summoned is resident, or to any prison which may be provided as the prison of the Court, for any period not exceeding forty days."

Thus several grounds of committal are furnished, and the County Court judge enabled, on his own view of the case, without question and without appeal, to commit the debtor, if he refuse or neglect to pay the amount of the judgment, or such part of it as he is ordered to pay, to prison for any period not exceeding forty days; section 103 also providing, that no imprisonment under that act shall in anywise operate as a satisfaction of the debt, or other cause of action for which the judgment was obtained; and that the defendant may on fresh grounds be summoned anew, and imprisoned anew, so long as any part of the judgment debt remains unpaid. So that, except so far as the liability on such judgment is met by the alleviatory laws of bankruptcy and insolvency, all creditors, however numerous, who hold County Court judgments for their demands, may each of them singly, if they can persuade the County Court judge in whose district the defendant is residing or carrying on his business to inflict it, apply this process of imprisonment from time to time, at any time during the period of the debtor's life, unless he satisfies them to the uttermost farthing. And the question in dispute is, whether, where a creditor has obtained such judgment in the County Court, and after such judgment the debtor's case has been heard and adjudicated upon under the Insolvent Act, and a discharge or final order has been obtained protecting him from all process of imprisonment in respect of the judgment debt, all requirements essential to the validity of the adjudication and its application to the particular debt having been complied with, and the creditor, notwithstanding such adjudication, proceeds to apply to the County Court for the imprisonment of the debtor, the County Court judge can legally, in defiance of such adjudication and discharge, proved before him on behalf of the debtor at the hearing of the summons, commit and recommit the debtor to prison? And also whether, in the case of bankruptcy—for the question also arises in bankruptcy-the County Court can legally, in a similar manner, set at nought the proceedings and adjudication in bankruptcy; and notwithstanding that a certificate of conformity, obtained since the judgment, is put in and proved before him on behalf of the judgment debtor, inflict one or

VOL. LIV. NO. CIX.

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repeated imprisonments for the amount of the judgment debt, or any part of it which remains unsatisfied.

This paramount power of imprisonment has been claimed by certain of the County Court judges on their construction of the County Courts Act; and some observations of the Court of Common Pleas, in the case of Abley v. Dale (which was an action of trespass by a debtor who had been imprisoned, against the summoning creditor), in favour of the legal existence of such a power, though fraught with a manifest sense of the absurdity of its exercise, and though unnecessary for the determination of the precise point on which Abley v. Dale turned, have unfortunately been adopted, both by that Court, and each of the other superior Courts of Common Law, as decisive of the main question, and as establishing the legality of such proceedings by the County Court judges. The power thus asserted has not remained a mere unacted theory, nor been slowly or sparingly exercised: it has, on the contrary, been wielded with all the defensive energy of an assailed and newly-constituted jurisdiction, jealous of its privileges; and in some instances, as stated elsewhere, the ruin of families, and the untimely death of the "judgment debtor," have been the practical results of the new doctrine of perpetual imprisonment. The injustice and oppression beginning to abound, seem to have rendered it impossible for the man of all others most competent to speak, any longer to remain silent, and Chief Commissioner Law has humanely come forward to vindicate the consistency of the Legislature, and to bring, we hope, effectual succour to the distressed.

The Chief Commissioner begins his "Remarks" as follows:

:

"The wisdom of the laws of bankruptcy and insolvency, as they affect the relief given to debtors from the task of paying their debts, is a subject on some branches of which various opinions have been entertained. But there is one principle in those laws, to whose justice and expediency I believe and hope there is a general assent; namely, that when either of those processes shall have been duly executed between a man and his creditors, there shall be a pronounced period, from and after which his body shall be privileged against molestation on their part."

He then states that the principle of personal protection is in great danger of being practically overthrown; that County

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