date the position of the bankrupt, in the eye of the law, did not in many material particulars differ from that of the criminal, there being what one might now describe as a tacit assumption that insolvency was a status fraught with dishonour, and reached only by devious ways and dishonest practices. That an honest man might by innocent misfortune become incapable of fulfilling his obligations, or of paying his debts as they became prestable, does not seem to have been contemplated in the early attempts at legislation. There seems, however, to have gradually grown up side by side with an honest desire to efficiently conserve the rights of the insolvent's creditors, the feeling that a bankrupt was not necessarily a criminal, and that, as the weaker vessel, he was entitled to some form of protection from his creditors, who were necessarily actuated towards him by feelings, if not of actual animosity, at any rate of no great friendliness or sympathy. One cannot but rejoice that the old lex talionis, which permitted the creditors of an unfortunate debtor to incarcerate him till he paid his debts, is now justly regarded as a relic of barbarism. But, at the same time, one cannot help recognising that in the mercantile world there has recently grown up an uneasy feeling that, in our desire to protect an honest but unfortunate debtor, our legislation has outstripped the limits of prudent consideration of the debtor's interests, to the consequent neglect of those of his creditors. It is felt that much of our humanitarian legislation has resulted in enabling many a fraudulent debtor to elude the punishment which ought to have followed his offence, and to escape its legitimate consequences. The reforms, therefore, most consistently desired are chiefly those which deal with the prevention of fraud on the part of the debtor, either by enlarging the scope of those provisions which have for their object to prevent the debtor alienating his property to relatives and others presumably in his confidence, or to favoured creditors, or those which aim at preventing a fraudulent debtor obtaining his discharge on terms inequitable to his creditors. Now, imprisonment for debt was, except in certain very exceptional circumstances, finally abolished by the Debtors Act of 1880. One, however, not infrequently sees in the reports of the proceedings of bankruptcy reform associations and elsewhere the assertion made, generally in no uncertain voice, that the time is ripe for a return to the old law by which (under certain restrictions and limitations) a creditor should have restored to him the power of incarcerating his debtor. But, while it seems certain that the Legislature will not now be induced to take so retrograde a step as to restore

to creditors the right of personal diligence, there seems to be a consensus of competent opinion that, provided the power be placed under sufficient restrictions and limitations, there is no sufficient reason why it should not be restored. The most feasible remedy, and that most consistently advocated, appears to be to take the power directly out of the creditor's hands, and to give the Sheriff a discretionary power, either ex proprio motu, or on a petition by the creditor, of committing to prison any debtor whose failure to pay his debts can be proved to be wilful and deliberate, or who can be proved to have deliberately incurred debt in the knowledge that he neither has the means nor the reasonable expectation of means wherewith to pay his debt. There can be little doubt that, of all fraudulent debtors, he who deliberately incurs debt without any reasonable expectation of being able to pay is the worst and most heartless. And he, unfortunately, is just the very debtor whom our law at present is powerless to adequately punish. It will readily be conceded by most reasonable people that, by taking the power of incarcerating a debtor directly out of the creditor's hands, and vesting it in the discretion of the Sheriff, much of the ground for objecting per se to imprisonment for debt has been cut away. Imprisonment is, in England, competent on lines similar to those suggested. But it is matter of common knowledge that the system has in that country been brought into, perhaps, deserved contempt, owing to the number of committals to prison for debts of insignificant amount, often of a few shillings. Therefore, it would seem expedient, in applying such a principle to Scotland, to impose such restrictions as would ensure that no debtor could suffer imprisonment unless his debt was over a certain value. Under the old law, it will be remembered, imprisonment for debt was incompetent when the amount did not exceed £100 Scots, or £8 6s. 8d. of our money, and that sum might conveniently be fixed as the limit were the power of imprisonment restored. It will not, of course, be forgotten that the power of committing a recalcitrant debtor to prison is already, in the case of debtors under the Civil Imprisonment Act of 1882, possessed by the Sheriff, and it does not appear that, subject to the safeguards mentioned, any valid reason could be adduced for objecting to the extension of the power in the case of ordinary civil debtors who are proved to have been guilty of offences of the nature specified. It can hardly be denied that, if the law were extended as proposed, a vast deal of unprincipled and dishonourable conduct, which at present there is no effective means of preventing or checking, would be prevented, to the

great improvement in the tone of commercial morality and to the pecuniary gain of many who at present are at the mercy of a class of debtor whom the law is powerless to reach. And, at the same time, there might very well be introduced some extension, both of punishment and of civil disability, to a class of debtor which seems to be largely on the increase, that of the debtor whose bankruptcy is due to conduct not merely fraudulent in intent, but actually fraudulent and criminal in fact.

Among the most important provisions in connection with bankruptcy procedure are those which have reference to the transference of the bankrupt's property to the trustee, and its vesting in him for behoof of the general body of the creditors. By section 102 of the Act of 1856 the act and warrant in favour of the trustee ipso jure vests in him, for behoof of the creditors, the bankrupt's whole moveable estate wherever situated, and, so far as it is attachable for debt, the necessary wearing apparel of the bankrupt, his wife, and family being excepted. By the interpretation clause estate is defined to include every kind of property wherever situated, and all rights and interests therein capable of legal alienation, or of being affected by diligence, or attachable for debt. Now, it has been pointed out with much force that any ordinarily capable business man considering these sections would inevitably, and not unjustifiably, conclude that their plain meaning and intention, so far as concerned the bankrupt's moveable property, was that the whole rights and property of the bankrupt-everything which he could turn into money, or from which he could derive pecuniary benefit-was to be made available to meet the claims of his creditors. But, of course, any one conversant with even the most elementary principles of bankruptcy law knows that such an interpretation is as far as possible removed from actual fact. The property which vests in the trustee is only that which is attachable by diligence, and, consequently, all property belonging to the bankrupt, or in which he possesses rights, powers, and interests, but which is not legally attachable for debt, is not included in the estate available for distribution among his creditors. Now, among the various kinds of property which at common law are not attachable for debt are included (1) a debtor's working tools, or those by which he earns his livelihood; (2) a spes successionis or right in expectancy to which a debtor may or may not succeed on the happening of a specified event; (3) an alimentary fund conveyed to the bankrupt under conditions which prevent him assigning it, or its becoming attachable for his debts by his

creditors; and (4) money acquired by him after his bankruptcy, but before his discharge, solely through the unaided exercise of his brain or hands. No serious objection can be taken to the exclusion of the debtor's working tools, though there seems to be a disposition on the part of the Court to include in that category articles which only by a somewhat elastic interpretation can be said to fall within the category of working tools. It is, however, somewhat curious that the law as regards the right of a bankrupt to the products of his industry, acquired solely by the exercise of his brains and hands, has never received authoritative judicial sanction, and rests meantime on the dicta of a distinguished Outer House judge. The ratio of that judgment expressly was that, to make a man virtually the slave of his creditors by forcing him to work and earn money for them, was repugnant to modern ideas. While it may be conceded that no man can physically be compelled to work for the benefit of his creditors, it would appear to be somewhat of a refinement to categorically deny to his creditors some share at least of a professional man's income, especially where through exceptional talent that income happens to be grossly in excess of his actual requirements. But with regard to the second and third of these classes, it has been objected that, in equity to the debtor's creditors, some portion at least should be made available in payment of the bankrupt's debts, on the broad ground that every right which is available to the debtor should be equally available to his creditors. The subject is one which is fraught with much technical difficulty. It will not, in the first place, be forgotten that, after all, sequestration is simply a form of diligence no doubt the highest formbut, after all, nothing but a form of diligence whereby the rights and interests of the creditors are preserved and regulated according to their several rights and preferences; and, in the second place, that the property which passes to the trustee consists in " that in which the debtor has a beneficial interest which the law allows him to dispose of to the extent of that interest." It would not, doubtless, pass the wit of man to devise means whereby some modification of the existing law might be effected, but it is not at first sight apparent how, without entirely altering the character of sequestration as a diligence, property which is outwith the bankrupt's control, and which is expressly destined to him under conditions which exclude the diligence of his creditors, could be made available for payment of his debts. Of course, in the case of an alimentary fund, creditors have the power of annexing all beyond a beneficium competentia for the debtor. But since the

amount which the Court may consider as reasonably "necessary" for the maintenance of the bankrupt varies according to his station in life, little but cold comfort can, as a rule, be derived from such a consideration. A bankrupt, however, who possesses a strictly alimentary allowance, and who contracts debts in the full knowledge that their payment cannot be reasonably made out of that allowance, might very well be included in the category of these fraudulent debtors who contract debt without any reasonable expectation of being able to pay it. On the other hand, it is difficult to see how a mere expectancy which, even though it does possess a certain present actuarial value, may never become the bankrupt's actual property, can equitably be made available for distribution among his creditors. These considerations, however, perhaps only serve to show that the law of bankruptcy, in common with all other branches of human endeavour, suffers from the imperfections inseparable from its origin.

The Act 1696, cap. 5, made certain provisions with the object of preserving as far as possible equality among the general body of the bankrupt's creditors by restoring to his estate any asset, heritable or moveable, which, by having been alienated in security or satisfaction of a prior debt within sixty days of his bankruptcy, has disturbed the equal distribution of the insolvent's assets among his creditors. The limitation of the period to sixty days imposed by the Act is now generally conceded to be too short, and it is felt that an extension of the period to, say, six months would involve no hardship to any honest creditor. There can be little doubt that if the period were extended, while some difficulty might be experienced by the trustee in tracing and recovering such payments, the fact that they were liable to be restored to the debtor's estate would act as a wholesome deterrent in preventing the attempt to create such preferences. Some amendment of the provisions of the Act, as interpreted by judicial decision, whereby bona fide payments in cash made by an insolvent to a favoured creditor are protected, as being neither in satisfaction nor security of debt, has been advocated. But while a debtor remains in the uncontrolled administration of his estate, it is difficult to see how he could be prevented from paying one creditor or set of creditors in preference to another, or any equitable ground on which the favoured creditor could be forced to make restitution, though it may be admitted that in the judicial interpretation of the Act several anomalies have been allowed to creep in.

On one point connected with bankruptcy reform there is con