nesses to attend without the expenses being paid; but charging the future property of the insolvent with the payinent of it. By the Act, the power to summon an assignee, with respect to his accounts or conduct, can only be done upon the complaint of the creditor or the insolvent. I had not been long in the court, before I made enquiry whether any returns had been made by assignees, of the property which they had received, and how they had distributed it. I was informed, that no one in town or country had made any such return; upon which, of my own authority, having no power by the Act, I made an order, which directed it to be published in the London Gazette and other public papers, calling upon all the assignees, of whatever des cription, to make their returns to the court, by a given day (the first of last February), of what they had done as assignees. I would therefore suggest that such a power should be committed to the court itself, whether the insolvent or a creditor apply for it or not. Another omission in this Act (it would be wrong to call it a defect, as it might have been omitted on mature consideration) is this: By the Bankrupt laws, as far back as the reign of James the First, it was thought proper to give to the commissioners and assignees under those laws, power by bargain and sale to convey estates tail without the form of a recovery for the benefit of creditors. In the present Act, no such power exists. I therefore submit to the consideration of the committee, whether it would not be right to give the same power to this jurisdiction to bar an estate tail, as is afforded to creditors under the Bankrupt laws. When I first came into the court, I found many of the petitions and schedules much mutilated: some in a state scarcely legible, and always upon paper. A court of record to have its records upon paper was rather singular. Upon the suggestion of the chief clerk, therefore, I thought it right to make an order, that in future all the petitions and schedules should be ingrossed upon parchment, and not upon paper. This, perhaps, might not strictly be within the line of my authority. If, therefore, the Act be amended, it would be proper to enact, that all the proceedings should be ingrossed upon parchment; and as the proceedings are now become extremely numerous, and increasing every day, some secure place should be fixed on in which those records can safely be deposited. is the schedule a matter of record? -Yes; it is filed in the court, where the assignee and the creditors can resort to it at all times. The detaining creditor indeed is entitled to have a copy of it; but any other creditor has only notice of it. Upon principle, it might be an essential amendment of the law, to direct an enquiry to take place of the conduct of the insolvent, for some time previous to his going into actual custody, as to the management or mismanagement of his property. Though such an enquiry more or less takes place, yet it might be of importance to the creditor, whose rights and interests are concerned, that for a certain time (two years or less) previous to his going into actual custody, within which the insolvent should be bound to answer all fair and reasonable questions relating to his conduct, and the application or misapplication of his pro. perty, so as to ascertain the real causes of insolvency; and if the result be not satisfactory to the court, to be remanded toties quoties, till it be satisfactory. Have you an idea that you have not a power to enquire into his conduct previous to his arrest?—Yes; if he comes within any of the exceptions of the Act: but not as to any imprudence or extravagance, with reference to his property. Your reason for thinking so is, that the object of the Act is only to discover whether he has been guilty of fraud or not, or whether any property remains? Yes; whether he be really unfortu nate, or by his misconduct within the exceptions of the Act. You used the words, that he should be remanded till his answer was satisfactory; what meaning do you apply to the word satisfactory; do you mean that the answer he makes is pertinent and direct according to the questions; or that his conduct is such as to satisfy the Act?-Till he satisfies the court as to the propriety of his conduct. An important feature of the Act, is the 41st section; under which, if any prisoner seeking the benefit of the Act, shall appear to have made, within five years before, any conveyance or assignment of any part of his property, with intent to give an undue preference, he is not to be entitled to his discharge, unless such creditor abandons the pre ference, or unless all the creditors agree to his being discharged; and it must be done with an intent afterwards to obtain a discharge from the demands of other creditor or creditors. Of all objections, this I think has been more frequent than any other. Many have been remanded, not opposed by any creditor, but upon inspection of the schedule by the court itself, undue preference being manifested; still the court, upon other facts, must bring its mind to this conclusion, that though the undue preference has taken place, that it was done with an intent, at a subsequent time, to take advantage of the Act as to his other creditors. I have now reason to believe that very good cffects will result from such remands. The insolvents now take great care, and so do debtors of almost every description who mean to take advantage of the Act, not to give an undue advantage to any of their creditors. Of those who have been remanded by me, for undue preferences (over which, as to the creditor so preferred, or the property transferred, the court has no controul), the preferred creditors have in almost half the instances abandoned the preferences, and come in as creditors pro rata with the rest. One instance I will communicate to this honorable committee: A gentleman who had possessed large real property, a Mr. Lodge, of the north of England, whose schedule I believe contained debts to a very large amount, was brought up to be discharged. Upon his being opposed, it turned out, that while he was in prison he had executed a conveyance of a particular estate to Sir James Graham, as a security for a bona fide debt. Upon this the court felt it its duty to make particular enquiry of Mr. Lodge, as to the circumstances. He stated, that he had certainly executed such a conveyance while he was in prison, but previously to that he had given to Sir James Graham a bond and warrant of attorney that the debt was a bond fide debt, of between four and five thousand pounds; and that when he executed the bond and warrant of attorney, it was understood, that whenever called upon, he was to execute a deed and bargain of sale of the estate in question. Upon which I asked him, "Mr. Lodge, at the time you gave the bond and warrant of attorney for this bond fide debt to Sir James Graham, did you owe those other debts which appear in your schedule!" He answered, Yes. I then remanded him for the undue preference. This happened upon a Friday. Between the Friday and the Monday following, highly to the honour of Sir James Graham, he sent a regular authority to his agent, abandoning the undue preference; which he did, and came in as a creditor pro rata with the rest. Refer to section 41, and inform the committee whether you have any power to prevent the discharge of a person who has given a preference within five years of the time of his applying for his discharge, but before the passing of the Act?-No; and therefore it might be an improvement to alter the clause in this respect, by leaving out the motive in the insolvent as to his discharge, and resting it merely on the undue preference; and with every deference to the committee, it may be important to consider whe ther it would not be wise to give to the court a jurisdiction to compel the creditor preferred to answer all proper objections and questions respecting that preference, and, if the court should think right, to compel him to give up the preference. Is the committee to understand you to say, you would carry thisjurisdiction beyond what is given under a bankruptcy, where evidence is taken as to undue preference, and then it goes to another court to decide upon that, and would put it in the power of the court to decide?-My view certainly goes further; it is I admit a very strong equity. There is another clause in the Act, the 35th section; under that clause, prisoners obtaining money under false pretences or by improper representa tions, &c. are not, if the fact be substantiated, to be discharged as to those debts; but as to those debts, the creditor so imposed upon has his debt, if no case be made out to the satisfaction of the court, excepted; that is, with respect to that debt he is not to be discharged, but as to all the rest he may be and is discharged. This certainly appears to me a great defect in the Act; because if a case of fraud be made out to the satisfaction of the court, it ought not only to affect the debt of the particular creditor, but ought to affect the discharge as to all the rest of the creditors; instead of which see the effect: The person whose debt has been excepted interferes no more; the insolvent is discharged as to all the rest; gets bail to the excepted debt; and avoids the remanding power of the Act. The clause therefore should be altered, so as to prevent the insolvent being discharged at all. Would you carry the same amendment to the 55th ?-Yes. I would. As applying to any fraudulent circumstances not specially named ?-Yes. What construction do you put upon the words, or otherwise, as following the words, effect in trust, in section 41-Whether it be by way of trust or not, provided it be by any means, for the benefit, directly or indirectly, of any creditor.-The next section of the Act to which I would draw the attention of the committee, is the 27th section, which states, that the pay or half-pay of any officer in the ariny or the navy, should be subject to be distributed in reduction of the debts of an insolvent. I would only submit to the committee, the propriety of a trifling alteration in that clause, and which has arisen from the case of Admiral Watkins, lately discharged under the Act. The admiral had obtained from government what I conceived half-pay, instead of which it turned out to be a pension he had, a pension somewhat short of 4001. a-year. He was opposed by respectable bankers at Bath, upon the ground of a misrepresentation: they made out that ground to my satis faction. The admiral was remanded; but was brought up a second, and I believe a third time. The result was, that those who opposed and the admiral came to an arrangement, it being an excepted debt; out of his pension he had agreed to give, and they had agreed to take, 501. a-year, with the costs of their opposing him, till their debt of 2501. was paid. Here was an instance of an excepted case, where by these means one creditor gets paid the whole of his demand, and the others may not get any thing. However, upon this arrangement taking place, I conceiving the means to be pay or halfpay, in the terms of the Act, directed an application to the Lords of the Admiralty, to make the deduction from the allowance. They gave me to understand, that as it was neither pay nor half-pay, but a pension, they could not interfere, and must therefore leave it to the parties to act as they might be advised. Upon looking at the Act, I found they were correct. At length the arrangement was, that Admiral Watkins gave an authority to the person who paid the pension to pay 501. a-year to the creditor, who was also authorised to receive it, and upon that he was discharged. I would therefore recommend, that this section should be altered, and the words "pension or any other allowance" should be added to it. In that case, where the bankers at Bath got their full debt by that arrangement, were the other creditors acquainted with that circumstance ?— I should think they must. Each creditor bas twenty days notice; it is his own fault, therefore, if he does not attend. Have the Secretary at War, or the Lords Commissioners of the Admiralty, in any case permitted pay or half-pay to be given over to the creditors? Yes, in one instance lately, the Secretary at War permitted it in the case of a Colonel Zehnpfenning. --The next section to which I would draw the attention of the committee, is the 53d; by that section, persons not naturalborn subjects are not competent to be discharged, unless upon terms of consent of the creditors, or such other terms and conditions as the court may think proper to interpose. There have been several foreigners brought up to be discharged, and in every one of those cases some terms or other have been inter posed; such as getting the consent of a certain proportion of their creditors, which I believe in one instance was obtained. Another I recollect of a young woman who was about to leave this country for Portugal; and as there was no doubt she had, or probably would have, effects there, and none here, I therefore interposed a condition that she should find security in her recognizance of some responsible person here, for the purpose of satisfy ing the court, that in case of any future effects acquired there or elsewhere, they should be applied in discharge of the demands of the creditors: unhappily for this young woman, she has never been able to obtain any such security, and she remains still in custody. Now I would suggest to the committee, that it should be permitted to the court, if it felt it right under all the circumstances, to discharge a foreigner without any condition at all. In that case, did it appear that this lady, if she had gone to Portugal, would have had the command of her property? -No; but there was great reason to be lieve, that she had relations there, and every prospect of acquiring future property. The next section is section 51; by which section any prisoner charged with any debt at the suit of the crown is not dischargeable. Upon this clause there has been a case of some importance; and there is one, if not more, depending. The case to which I allude was the case of a person of the name of Smith; and he was charged in custody, apparently at the suit of the crown, upon an extent in aid. Now the whole of such a proceeding is, upon the face of it, at the suit of the crown. The discharge was resisted on the part of the crown. On the first discussion of the case, I confess I had taken a strong impression, that, though it was apparently at the suit of the crown, yet that it was not bona fide so to enforce the payment of a debt really due to the crown; I therefore desired to have an inspection of all the proceedings in the court of Exchequer. I had upon reading them over deliberately, my impression was completely done away; because it turned out, in fact, that the prerogative process had been used bona fide to effect the payment of a debt really due to the crown. But I am very free to confess to this honourable committee, that, had it turned out otherwise, though the proceeding had been in form at the suit of the crown, but by no means bona fide, I should have felt that a debt over which the court had a controul, and from which the debtor ought to be discharged. Whether those now depending are of that complexion, I do not know; but I think it right to make this communication to the committee, wishing, with every deference, to suggest, that the section alluded to should be altered to, any debt really and bona fide due to and sued for, and at the suit of the crown only. Give the committee your opinion as to persons confined for not appearing upon Exchequer process, which is neither a debt, nor a contempt for nonpayment of costs; have any cases of that kind occurred?-Not one. I have heard of cases of that kind, but have never had such before me in judi cature. In point of fact, are the committee to understand, that the construction you put upon clause 41, is, that it extends to a security not being a conveyance or assignment, being an instrument by which all or any portion of a debtor's estate is conveyed or assigned ?—I have held it to apply to a warrant of attorney, which is, in effect, an assignment of property, and has all the effect of it, or to any other by which the property is transferred. You consider the Act as applying to a transfer of property, though not by conveyance or assignment?—Yes, a warrant of attorney has that effect; it authorises an execution, which transfers the property to the creditor. You take into your consideration the word effects, as joined with the word estate?-Certainly. By the 13th section of the Act, any creditor may within a year after the discharge of any prisouer, if he has obtained it either by fraud, or wilfully concealed any part of his effects, apply to the court to declare the discharge void, and to remand such prisoner again into actual custody. Now there cannot be perhaps a more important feature in a public law of this description; and yet to shew the committee the negligence (to speak in mild terms) of the creditors themselves: In the course of my experience, only two applications have been made on the part of the creditor to have the discharge rendered void, and the persons remanded again to their original custody. In those two, each was successful; each discharge was declared void, and both the insolvents now remain in the custody from whence they were originally discharged, I mention this only to shew, that with respect to what is supposed, that those people obtained their discharge in an improper way, it is singular that among so many thousands as have been discharged, only two such instances should be produced on the part of the creditors, as those I have just communicated: it only affords one of two inferences, either that the debtors have conducted themselves correctly, or that the creditors have been negligent of their own rights. Another material feature in the Act is the 42d section; under that the assignee has a power to apply to the court to have the prisoner further examined as to his estate and property, notwithstanding his discharge. There has been but one solitary instance of this kind, which was a case that happened very recently. A person of the name of Lewis, who had been discharged, was brought up to the court by his assignee, to be re-examined as to his property: he answered every question: nothing arose from his answers at all, to criminate himself; but not so as to the assignee. The assignee had been the landlord of the insolvent; there was rent in arrear for which the landlord was put in as a creditor in the schedule; the man was discharged; the landlord was appointed assignee, accepted the assignment, acted as assignee, went into possession, distrained the property as laudlord, converted it all to his own use in that character; and there was hardly a shilling left to be distributed among the other creditors. This assignee brought up Lewis the insolvent to be re-examined: the result is what I have stated. I gave the assignee to understand I should not just then remove him, but that I should expect him to account for every shilling of the property which he had so grossly misapplied, and to bring that money into court to be distributed among the creditors. There is no remedy given against assignees who waste the property?The Act gives great powers in this respect, as to account, by section 20, and by section 44. The Court may hear complaints against, and remove them: and by section 46, au assignee who shall not deliver over any part of the estate, or pay the balance, according to the order of the court, may be committed without bail, till he obeys the order. Does it occur to you to suggest any provisions respecting that?-1 have no doubt, upon the general power of the Act as it now stands, if the assignee wastes the effects, or does not give a correct account, and comply with the subsequent order of the court, the court can commit him if he does not. Would the power of commitment extend further than refusing to give an account?-Till he has obeyed the order and pays costs. Supposing it appears that he has wasted or misapplied the assets, would the court have a power in that case? Not to those, an order having been previously made and disobeyed. Then it would be a commitment in the nature of a punishment ?-Till be obeyed the order. With reference to the 36th section applying to those not natural-born subjects, do you apprehend that that requires that you should impose, as of necessity, some terms and conditions? -I submit to the committee a clause, giving power to the court to discharge without any conditions; as it is, I feel it to be imperative at present. Do you not think it might facilitate the general convenience of the court, and of the creditors, on all occasions, if the assignees were fixed and appointed by the court, and all monies brought into the court, and from thence paid to the creditor, and the court took cognizance of all those transactions ?--I quite agree to the suggestion in every view of it. That has always been my impres sion, and indeed, to a great extent, that is now the provision of the law; for till the regular assignment takes place, all the property is vested in the provisional assignee; but larger provisions, in my opinion, are necessary to carry that fully into effect. (To be concluded in our next.) For the EUROPEAN MAGAZINE. The EPISTLE from the YEARLY MEETING held in LONDON, by ADJOURNMENTS, from the 21st of the FIFTH MONTH, to the 30th of the same, inclusive, 1817. To the Quarterly and Monthly Meetings of Friends, in Great Britain, Ireland, and elsewhere. DEAR FRIENDS, T HE love of our Heavenly Father has prevailed in this our annual assembly. It has united us in the fellowship of the Gospel, and has extended to our dear absent brethren. Under this influence, our confidence has been renewed, that the foundation upon which the righteous in all ages have built their faith and their hope, is for ever immutable. Notwithstanding our own infirmities, and the discouragements which surround us, we have felt the consoling persuasion that the Lord is still mindful of us. He who hath blessed us and our forefathers with many tokens of his Divine regard, is yet waiting to show himself gracious; and by the Spirit of his Son is calling us to purity of heart, and to holiness in all manner of conversation. May we then consider the sacred duties which de |