estate shall have been so benefited, saving to such owner his action against the debtor for further damages.' s. 3.

This is a provision of some importance, on which the commisin their report,

sioners say,

'There are many cases where goods are delivered to a person as a carrier, factor, trustee, or bailee, for other purposes, and are afterwards so converted or misapplied by him as to render him liable for the value of them to the right owner. In such cases the owner may, at his option, bring an action on the contract, and recover the value or proceeds of the goods; or he may consider the other party as a wrong-doer, and bring an action against him for the tort. The claim, considered in the first view, would be proveable as a debt; in the other it would not; and yet it seems absurd, as well as unjust, to let it depend on the will of the creditor, and on the form of action that he shall elect, whether his claim is proveable or not under a law of this kind. The Commissioners have accordingly proposed to consider all claims of this description as proveable debts, entitled to a dividend, and liable to be barred, like those founded wholly on contract. They have proposed also to extend this provision to all cases, even of mere torts, where goods or any valuable property have been wrongfully obtained, taken, or withheld by the debtor; confining, however, the sum to be allowed against the estate, to the amount to which the estate has been benefited, and that of the claimant injured. It is intended, of course, to exclude, not merely personal injuries, such as assaults and batteries, and slander; but also all injuries to the property of another, which do not benefit the wrong-doer. Thus if a man should wantonly or carelessly burn or destroy his neighbor's property, the damage would not be proveable as a debt; but if he should take the same property and convert it to his own use, the owner would be considered as a creditor for the value of the property.'

Set-off is allowed, as usual, in case of mutual debts, and where a creditor has a lien or mortgage as security to a part of the amount of his demand, he can claim only for the excess. s. 3.

Proof of debts-Allowance - Appeal. The judge may examine, on oath, the creditor or his agent or attorney presenting the claim, and also the debtor, as to any debt claimed, and if the creditor is dissatisfied with the disallowance, or the assignees

with the allowance, of the debt, an appeal may be made to the court of common pleas or the supreme court, as the case may be. s. 4. It is necessary, as the commissioners remark, that this appeal should be allowed in order to give either party, if he demands it, an opportunity of trial by jury, in conformity with the article of the constitution securing this privilege. The provisions on this subject and the forms of proceeding, are skilfully devised.

Assignment. The assignment of the debtor's property to the assignees, is made by the judge. Though a change of the property takes place by operation of law, yet a formal assignment is convenient, as a matter of record. The debtor is required to make specific assignments and transfers, especially of property out of the state, or claims upon persons abroad.

s. 5.

Examination of the debtor. The debtor is required to give a statement, on oath, of his affairs. s. 6, 7.

Certificate and discharge. If it shall appear to the satisfaction of the judge that the debtor has made a full disclosure and delivery of all his estate, as is herein before required, and that he has, in all things, conformed himself to the directions of this act, the judge shall grant to him a certificate thereof, and the debtor shall be thereupon absolutely and wholly discharged from all his debts, which shall be at any time actually proved against his estate assigned as aforesaid; and from all debts which are proveable under this act, and which are founded on any contract made by him, after this act shall go into operation, if made within this commonwealth, or to be performed within the same; and from all debts which are proveable as aforesaid, and which are founded on any contract made by him, after this act shall go into operation, and due to any persons who shall be resident within this commonwealth at the time of the first publication of the notice of the issuing of the warrant mentioned in the first section of this act; and from all demands for or on account of any goods or chattels wrongfully obtained, taken or withheld by the debtor, as mentioned in the third section of this act; and the said debtor shall be also forever discharged and exempted from arrest or imprisonment, in any suit, or upon any proceeding, for, or on account of any debt or demand whatever, which might have been proved against his estate as aforesaid.'

This provision, and that for a ratable distribution of the debtor's

property, are the two leading objects of the act. The present one is framed in particular reference to the decisions of the Supreme Court of the United States determining the limits of the operation of state insolvent laws. A small allowance is made to the debtor, as usual in insolvent acts, during the pendency of the proceedings. s. 6, 7.

But if the judge shall not see fit to grant the certificate, or 'if one half in number or value of the creditors, who shall be creditors respectively for not less than fifty dollars, and who shall have duly proved their debts, shall, by writing under their hands, signify to the judge their dissent and objection to the granting of such certificate,' s. 7, the same shall not be granted, unless upon the debtor's appealing to the supreme court, that court shall, after a full hearing, decide in favor of granting it. s. 8.

Allowance of five per cent. to the debtor. Many insolvent and bankrupt laws allow the debtor a certain per centage on the net amount of his property, in case of its exceeding a certain.rate; for the purpose, as stated by the commissioners in their report, of encouraging persons to wind up their affairs and distribute their property among their creditors, as soon as they discover themselves to be insolvent, instead of plunging deeper and deeper at the risk of their creditors, in hopes of retrieving their affairs. The proposed allowance is five per cent. upon the amount of dividends, when they are fifty per cent. or more, provided it shall not exceed five hundred dollars. s. 8.

Fraud-Preference. Every certificate of discharge granted to a debtor under this act shall be of no effect, if he shall have wilfully sworn falsely as to any material fact in the course of the proceedings under this act; or if he shall have fraudulently concealed any part of his estate or effects, or any books or writings relating thereto; or if, after this act shall go into operation, he shall, in contemplation of his becoming insolvent and of obtaining a discharge under the provisions of this act, make any payment, or any assignment, sale or transfer, either absolute or conditional, of any part of his estate, with a view to give a preference to any creditor, or to any person who is or may be liable as an endorser or surety for such debtor, or to any other person who has or may have any claim or demand against him; provided, that this clause shall not apply to any security given for the performance of any contract, when the agree

ment for such security is part of the original contract, and the security is given at the time of making such contract. And all such payments, assignments, sales and transfers, shall, as to the other creditors of such debtor, be void, in like manner and to the same effect as conveyances made by any debtor to the intent or whereby his creditors may be delayed, hindered or defrauded, are now by law void as to such creditors; and the assignees shall and may, by an action in their own names, recover from the creditor so preferred the money or other things so paid, assigned, sold or transferred to him, or the value thereof, for the use of the other creditors. And the creditor so preferred, if he shall have accepted such payment or security, knowing that the same was made or given by the debtor contrary to the provisions of this section, shall not be allowed to prove the debt on account of which such payment or security was made or given, nor to receive any dividend therefor out of the estate assigned by force of this act.'

Subsequent admission of creditors. Creditors are admitted. to prove their debts, at a meeting of the creditors to be held within six months after the appointment of the assignees, in case of their not having proved them at the previous meeting. s. 12. First Dividend. The first dividend is to be made within six months after the appointment of the assignees. s. 12.

Priority. Debts due to the United States, or any other debts entitled by law to a priority, are to be preferred according to such right. s. 12.

Distant creditors. At the time of making the dividends funds are to be reserved for distant creditors who may not have had an opportunity of presenting their claims. s. 12. But a former distribution is not to be disturbed by the subsequent admission of creditors. s. 13.

A second dividend is to be made within eighteen months from the appointment of the assignees, unless the whole property shall have been divided at the first. s. 13.

The intention is that this dividend shall be final, unless, from the pendency of suits, or some other reason, the proceeds of all the debtor's property cannot be so soon realized.

Fees. It is proposed to allow the judge five dollars for receiving and allowing the original petition, and a like sum for each day's attendance on the business of insolvent estates, the

latter fee to be apportioned upon the different cases, if more than one, acted upon during the same day. s. 16.

It is proposed that the clerk appointed upon each insolvent estate, shall be allowed two dollars a day, besides an allowance for extra services. s. 16.

The messenger's fees, for taking possession of the debtor's property, and other services, are proposed to be left to the discretion of the judge, reference being had to the fees allowed by law to sheriffs for similar services.

s. 16.

The proposed fees of witnesses are the same as for attendance in the common pleas. s. 16.

Jurisdiction of the Supreme Court. It is proposed that the Supreme Court shall have a superintendance and jurisdiction as a court of chancery, of all cases arising under this act.

s. 18.

There are various reasons for this provision, but one is of itself conclusive, namely, that some one tribunal should have a general jurisdiction, that the proceedings should be uniform throughout the state. The Supreme Court seems to be the suitable tribunal for this purpose.

Partners. In case of the insolvency of partners, the partnership and separate property are to be first appropriated respectively to the partnership and separate debts, and the surplus, if any, in respect to either, is to be applied towards making up the deficiency in the other. s. 21.

Such is the outline of the proposed act, which is accompanied by forms proposed by the commissioners, to show, and also to facilitate, its practical operation, though it is not proposed that these forms shall be adopted as a part of the law. These forms are a very useful part of the report, as they enable persons not of the profession, to understand the operation of the law. The subject is presented so clearly, and the reasons both for the law in general, and the specific provisions, appear so forcibly and perspicuously in the report itself, that it cannot, we think, fail to settle the opinion of every person who reads it; and if the result shall be the adoption of the law proposed, it will prove to be one of the most important and salutary enactments ever made by the legislature of the state.

The report does not propose the erection of any new tribunal, but adopts an existing one, the constitution and functions of which are especially adapted to the duties proposed. This is a