proceedings as in the act set forth, between persons not subject to the bankrupt law and their creditors.

Insolvency.]-We have seen that the benefits of the bankruptcy acts are confined to traders, and we have now to observe that for persons not traders (as well as traders, if they please) relief, though in a different manner and of a different nature, is granted by what is denominated the Insolvent Debtors' Court. The statutes now regulating the system of insolvency are the 1 & 2 Vict. c. 110, as to insolvent debtors, strictly so called, and the 10 & 11 Vict. c. 102 (amending the 5 & 6 Vict. c. 116, and 7 & 8 Vict. c. 96), as to insolvent petitioners, transferring the jurisdiction from the courts of bankruptcy. There are thus two classes of applicants, namely, insolvent debtors who must be prisoners, and petitioners who may or not be prisoners. The petitioner, however, if a trader, must not owe so much as £300. Prior to the 10 & 11 Vict. c. 102, there was but one court (sitting in London) called the "Insolvent Debtors' Court," the judges of which, however, went circuits in England and Wales three times in the year. Now, by that act these circuits are abolished, and as to insolvent petitioners, the jurisdiction (speaking generally) of the town court is confined to petitioners within twenty miles from the General Post-office; and the new county courts have jurisdiction beyond that distance. As to insolvent debtors, strictly so called, the commissioners in town have jurisdiction, but beyond the twenty miles they are to direct the county court judges to hear the case (m).

Insolvent debtors.]-As to insolvent debtors, every person in actual custody within the walls of any

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prison in England or Wales, for any debt or pecuniary demand of a civil nature (with the exception of crown debt), is entitled to apply by petition for his discharge. Within the first fourteen days of his confinement, he may apply as a matter of right, but if the petition be longer delayed, it can be filed only by leave of the court. And, indeed, any creditor who has charged him in execution may, after twenty-one days from the execution, file a petition for the purpose of having his estate dealt with and disposed of according to the provisions of the insolvent law. Upon the petition being filed, a vesting order is made, whereby all his property, except to the amount of £20, is vested in the provisional assignee of the court, and by the subsequent appointment of the creditors' assignees passes to the latter (without any formal conveyance), with certain exceptions. For, first, as to his leases, or agreements for leases, they have an option whether they will accept them or not. Next, if he be a beneficed clergyman or curate, their title does not extend to the income of his benefice or curacy, and they can only apply for a sequestration of his benefice. Again, they do not take under the assignment the pay, half-pay, or pension which he holds from her Majesty, or the East India Company, though a certain portion of it may, by order of the court, and consent of the proper official department, be applied to the payment of his debts. And, lastly, his landlord, distraining for rent after the imprisonment, has a preferable title to that of the assignees, to the extent of one year's arrears accrued prior to the vesting order (n). In the meantime the prisoner, within fourteen days after the vesting order, is to deliver into the court a schedule, containing, among other particulars, an account of all debts due or growing due from him, and of all his estate and

effects in possession, reversion, remainder, or expectancy, and of all rights and powers which either he or any person in trust for him is entitled to exercise: and such schedule is also to comprise a balance sheet of his receipts and expenditure; and when subscribed by him, is to be filed in the court, together with all books, deeds, and writings relating to the prisoner's estate. It is to be a full, true, and perfect account of that estate; and if any part of it is fraudulently omitted, the prisoner swearing to the truth of the schedule, as hereafter mentioned, will not only incur the penalties of perjury, but be liable to imprisonment with hard labour for three years. The prisoner may apply to be let out on bail till the hearing. At the hearing, either before the court in London, or by a county court judge in the country, any creditor (if due notice have been given) may oppose his discharge. The court, on the prisoner's swearing to the truth of his schedule, and executing a warrant of attorney authorising a judgment to be entered up against him in favour of the assignee, may adjudge him to be discharged from custody. This adjudication extends to all debts and sums of money due, or claimed to be due at the time of making the vesting order, to the several persons named in the schedule as creditors, or claiming to be creditors for the same respectively, or for which they shall have given credit before the time of the vesting order, and extends not only to moneys actually due, but to those payable in future by way of annuity or otherwise, and also to the claims. of all other persons not known to the prisoner at the time of the adjudication, who may be indorsees or holders of any negotiable security set forth in the schedule (0). In point of time, the adjudication directs either a discharge forthwith, or at a future period, the length of which varies according to circumstances.

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The assignees are to get in the insolvent's estate and debts, out of which the creditors are to be paid rateably a dividend until their claims shall be fully satisfied.

In bankruptcy, as we have seen, the effect of the certificate is to discharge the bankrupt's person and future property, whereas in insolvency the discharge only extends to protect his person, leaving his future acquired property liable, through the medium of the judgment on the warrant of attorney. This is the great distinction between bankruptcy and insolvency (p).

Insolvent petitioners.]-We have hitherto spoken of insolvent debtors, strictly so called, but must now observe that insolvent petitioners, under the 5 & 6 Vict. c. 116, as amended by the 7 & 8 Vict. c. 96, and the 10 & 11 Vict. c. 102, on presenting a petition to the proper court, are entitled to an interim order of protection from arrest, or if a prisoner to his discharge; a day is then appointed for the granting of a final order, which when obtained discharges the party's person, and is an answer to any action for a debt mentioned in the schedule (q). The petitioner's property vests in the assignees, and is distributable among the creditors.

CHAP. XXXII.

WILLS AND ADMINISTRATION.

[See 2 Black. Com. ch. 32; 2 Steph. Com. Bk. II. pt. 2, ch. 7.]

Testament, or last will, is another method of transferring personal property. A testament, however, in some degree differs from a last will. A testament, testatio mentis, is where some person or persons are appointed executors, to carry the directions of the testator, with respect to his personal property, into effect, for an executor cannot meddle with a devise of real property. A last will, ultima voluntas, of which we have already spoken, is where no executor is appointed, as is used in the disposing of lands and tenements. There is also an instrument, which may be annexed either to a will or testament, called a codicil, derived from codex, a little book, and signifies nothing more than a schedule or supplement of that to which it is annexed. Testaments are either written or nuncupative.

A nuncupative testament is where the testator, without any writing, declares his will before a sufficient number of witnesses. It is called nuncupative à nuncupando, that is, à nominando, of naming; because in this species of conveyance he must make