וויון

great difliculty and expense to remove the wharf. It was built on driven into the bottom of the channel, all of which must be drawn up, both for the safety of the channel, and for the good of that portion of the wharf, which would remain. They further said, that it had not appeared in the course of the trial, that any objection was made while the wharf was building, either on the part of the city, or of the Commonwealth, to the same; and they denied, that any objection had been made to it by any one else. In consideration of their readiness not further to contend in law, they prayed that the court would not subject them to a fine, which would be oppressive in its

amount.

The judge said, that from the information which he had received, he was satisfied, that it would be a difficult and expensive operation, to draw up the piers and piles, and that it would require much time. He presumed it would cost several hundred dollars. It was not usual in these cases, to assess a severe fine, in nature of a vindictive punishment, where the parties submitted to the judgment, and were willing, that the nuisance should be abated. He should therefore assess a nominal fine only, and a warrant would be issued to the sheriff of the county to cause the nuisance to be removed; but as this could not be done advantageously till the warm season, the warrant would be made returnable on the first of July next.

The following judgment was then entered.

'Whereupon it is considered by the court that they, the said William Wright and Abraham A. Dame, do, for the offence of which they have been convicted, severally pay a fine of twenty dollars, to the use of the Commonwealth, to be disposed of according to law; that they pay the costs of this prosecution, taxed at seventy-six dollars and eighty-four cents, and stand committed, until they shall comply with this sentence.

And it is further ordered by the court, that so much of the said wharf, as is found in and by the verdict of the jury to be

In the Old Book of Entries, 144, Liber Intrationum,' in an assize of nuisance for diverting a water course, the entry is, quod nocumentum præd. amoveatur et trenchea præd. dictum obstruetur.

Hence I infer, that the principal object of an indictment for a nuisance is, to obtain an order for its abatement; and that it is the right of the people, to be relieved from whatever produces a general annoyance to the health, comfort, or convenience of the citizens. If nothing should be imposed but a fine, the party may prefer to pay it, and still continue the nuisance.

a nuisance, with all the piers and timbers under, and the materials belonging to the same, be dug up, demolished and abated, at the expense of them the said William Wright and Abraham A. Dame; and that a warrant issue to the sheriff of the county of Suffolk, to cause the said wharf, with all the piers and timbers, and materials, under and belonging to the same, forthwith to be dug up, demolished, and abated; and to levy the expenses thereof upon the money, goods, chattels or estates of the said William Wright and Abraham A. Dame, of them or of either of them; and for want thereof, upon their several bodies; all which is according to law.'

ART. II.-BANKRUPT AND INSOLVENT LAWS.

It is a universal principle, recognised by all codes of laws, and obviously dictated by the notions of right common to all men, that the property of a debtor belongs to his creditors to the amount of their claims, and accordingly when this amount exceeds that of his property, it is the creditors, and not the debtor, who are materially interested, and who ought therefore, to have the control and disposition of the property. In such case the debtor is commercially dead, and his estate ought to be administered upon and divided among those to whom it belongs, in the ratio of their claims. Thus far all makers, as well as all subjects of laws, will agree; but when we come to the practical application of this acknowledged principle, we meet with great diversity in opinions, and in the legal provisions for the case. The first inquiry is, What shall be considered a proof of this commercial dissolution? For, until this fact is established by the confession of the debtor himself, or some other evidence, he has a right to manage his property and use it in the application of his industry, according to his own discretion. If he has literally deceased, the law proceeds directly to divide his estate among those to whom it belongs, saving some preferences of the expenses of his last sickness and funeral, his widow's dower and paraphernalia, of debts to the government, of a debt by judgment over one by bond, and

of both, by some laws, over those by simple contract, and making other distinctions among the various claimants, according to the dictates of humanity, or the prejudices of the community, and policy of the laws and institutions under which he lived. Whatever distinctions are made in these respects, are questions among the claimants themselves, the principle above laid down being acknowledged, that his property is not subject to his own disposition by will, but to distribution by law to those who claim by right and obligation of debt, and not as donees or inheritors. If the debtor acknowledges himself insolvent, the law ought, by parity of reason, to step in and order the distribution in precisely the same way, since it is as unjust to allow a debtor, who confesses himself insolvent, to determine the distribution of his effects, according to his own partialities and attachments, as to permit him, in case of his decease, to make a similar distribution by will. In either case it is to allow him arbitrarily and capriciously, according to his own fancy or partialities, to decree the division and disposition of the estate of other persons. And it is a singular anomaly in the laws of some three or four of the United States, that they have hitherto made no provision for cases of acknowledged insolvency, but have left the division of property, which belongs to creditors, to the caprice of the debtor. The permission of so gross and palpable an abuse, is a grave reproach to any code; since, to this point, the case is too plain to be mistaken, and the obligation to make provision by law, is too imperative to be neglected with any shadow of apology.

But after passing this point, the subject is not without its perplexities; for, though the sovereignty of every state ought to, and virtually does, promise, as King John did at Runnymede, nullus liber homo capiatur vel imprisonetur, nec super eum ibimus, nec super eum mittemus, nisi per legem terræ; yet the very important question still remains, When and under what circumstances a man shall, per legem terræ, be proceeded against. As long as a debtor does not declare his own insolvency, the law must require some conditions before entertaining the inquiry, and one of the great difficulties in legislating upon this subject, is to fix upon and regulate these conditions. The most obvious fact in proof of insolvency, and one which appears to be an indispensable condition, in order to proceed against a debtor as an insolvent, is, that he should be proved to have been delinquent in his payments, and have failed

to satisfy some debt, which is unquestionably due and demandable. Accordingly, if a final judgment recovered against him, remains unsatisfied, this appears to afford sufficient prima facie evidence of insolvency, for the debt can no longer be disputed. This is not, however, a conclusive proof of insolvency, since, as we well know, by frequent experience, that persons unquestionably solvent, do not always forthwith satisfy debts established by a judgment, and which cannot, therefore, be any longer the subjects of dispute. But such a delinquency is certainly a just ground of instituting a judicial investigation respecting the party's solvency. The only reason for a distinction between neglecting to satisfy a debt by judgment, and any others, is, that it is not a subject of any further dispute, whereas other debts may be claimed, which the alleged debtor may deny, or against which he may have some set-off. But there seems to be so much presumption of an unconditional and indisputable debt, in cases of bonds for the payment of money, or bills of exchange and promissory notes, that the neglecting to satisfy either, when due, appears to be a just prima facie evidence of insolvency, and may fairly be a ground of instituting judicial investigation of the fact. Other circumstances are generally enumerated as establishing insolvency, or a design to defraud creditors, as will appear more particularly in the sketch of the different systems of insolvent and bankrupt laws which we propose to give in this article, and the presenting of which is our principal object; for though, in a previous number,(a) we treated of the subject of a national bankrupt law pretty fully, and need not repeat the arguments we there used in favor of such a measure, there is still enough remaining to be said on the subject of the laws of debtor and creditor generally; and a condensed view of the provisions of various codes on this subject, will present to our readers some general principles of practical importance. We are moreover, not without hope, that this collation may clear away some of the difficulties in which the subject is involved.

The declaring any person insolvent, and thereupon divesting him of the title to his property, and proceeding to administer upon his estate while he is living, and this without his consent, is evidently going very deeply into his rights and interests; and whether we should consider insolvency a fault or mere misfor

(a) No. I, Vol. 1. p. 35.

tune, and more especially, if the proceeding is founded on an alleged or supposed intention of defrauding creditors, the proceedings should be guarded by the surest provisions in favor of the rights of the debtor, and it is certainly a departure from the genius and principles of our institutions to proceed upon the fact of insolvency, until it is established by confession, or formal and solemn judicial investigation; and a question may fairly be made, whether this fact, so important to the debtor, should not, if disputed by him, be tried by a jury. Some of our codes provide for such trial. But according to most of our insolvent laws the declaration of insolvency comes from the insolvent himself, and there is accordingly no occasion for such a trial. Where an insolvent law, as that of New York, makes the debtor's concealing or absenting himself, with the design, as the law of course presumes, of defrauding or delaying creditors, an act of insolvency, it is a fact very proper for the determination of a jury. As far as lying in prison under an arrest on execution for debt is made a criterion of insolvency, as in the English insolvent law, it is a fact, concerning which there can be so little doubt that the trial of it by jury would be merely nominal, and of no practical importance.

Whether insolvency is confessed and declared by the debtor, or established by legal proceedings, questions in respect to his honesty or fraud may arise; and some of our systems of insolvent laws make a special provision for the trial of these questions by a jury. In others it is provided that all benefit from his discharge shall be forfeited by fraud; but the question whether fraud or not, is not directly determined in the course of the proceedings in the insolvency, being left to be tried incidentally on the debtor's being afterwards arrested for the remainder of the debt not satisfied, in case of the discharge purporting to be from future arrest only, or on a suit being brought for such remainder, where the certificate purports to be a discharge of the debt. It is, however, a defect in any laws on this subject, to enact that fraud shall defeat the discharge, (whether of the debt or from future arrest,) and not at the same time to provide for the decision of this question once for all; since if it be left to be tried incidentally, the decision may be sometimes one way and sometimes the other, as the question comes up necessarily before different juries in arrests or suits by different creditors. The only penalty provided by other laws, is that of perjury, the provisions of the law requiring