The Sun.
London, England, 1859-02-08 00:00:00

distinct and independent tribunals for the administration
of insolvent estates, and there had been very able re-
commendations made as to the propriety of placing the two
courts—that of bankruptcy and that of insolvency—under
the operation of one system. As early as 1-40 the com-
mission to which he had already adverted :. ad given ex-
pression to their opinion on the matter in their very able
report in the following terms :—They said,
"It appears to us that to unite the ju-i diction on mat-
ters of bankruptcy and insolvency would, upon principle,
tend much to benefit the public ;.but this benefit cannot,
we think, be obtained without placing all insolvent estates
under the administration of one uniform system of law.
We can perceive no good reason why the estate of one
debtor who is unable to pay his debts in full should be
administered in a different manner from that of another
debtor under the same disability. All such estates should,
in our opinion, be administered in some one mode which
is best adapted to' secure the interests of creditors, by the
examination of the debtor's accounts and the discovery and
distriiution of his property." They 'then proceeded to say,
" The system of the bankrupt law with the alterations and
further remedies, which we have humbly suggested to your
Majesty, is well adapted to those purposes, but so long as
debtors having no assets are liable to be imprisoned (and
many thousands are imprisoned every year) it is practically
impossible to administer such cases under a law requiring
rigorous investigation of accounts, regular proof of debts,
with audits, and other proceedings."
Their lordships would bear in mind that the report from
which he had just quoted had been issued prior to the time
of the introduction of the Protection Act, so that the only
mode of obtaining the benefit of the Insolvent Act was by
the debtor's going to prison. Now, the commissioners,were,
from their report, clearly of opinion that, in order to ac-
complish the object which they had in view of uniting the
Insolvent and Bankruptcy Courts, it would be necessary to
abolish, or at all events to modify in a very considerable
degree, the punishment of imprisonment. They had ac-
cordingly addressed themselves to that point also, and
stated in words which were precisely the same as those
which had been used by the Common Law Commissioners
in 1832 in reference to arrests on mane process, that—
" The principle of the present law is to do justice by the
use of the strong and compulsory means of arrest and im-
prisonment, applied indiscriminately. The system has
been found to be productive of so much hardship and in-
justice that it was at last deemed necessary to mitigate its
consequences by the enactment of the insolvent law. The
joint operation of the two opposite processes, for the im-
prisonment and enlargement of debtors, has been produc-
tive of so much evil as to tend to the suspicion which seems
to be fully verified by inquiry, that the mischief ought
to be obviated, not by provisions designed for the
mere mitigation of its consequences, but by removing
its cause : that is, by limiting the power of impri-
sonment itself, and confining it to cases where it is
warranted on the plain and just principle of preventing the
debtor from fraudulently absconding, or removing his pro-
perty beyond the reach of justice, or for the punishment of
actual fraud, or compelling the debtor after judgment either
to pay the debt or to make a cession of his property for the
benefit of his creditors. Beyond this, we believe that the
practice of imprisonment for debt is neither warranted in
principle nor beneficial in practice, and that, on the con-
trary, while the exercise of the present almost unlimited
power and imprisonment is productive of pecuniary loss,
injury, and distress to creditors as well as to debtors, it also
occasions great moral evils in its tendency to subdue that
proper degree of pride and honest feeling which is incon-
sistent with the degradation of imprisonment in a gaol, and
to level the distinction between guilt and misfortune."

With the principles which were enunciated in that portion
of the report he entirely concurred, and, acting upon the
suggestion there made, and in order to clear the way for
legislation, their lordships would find that the Government
measure set out with various clauses which were intended
to restrain, not to abolish, imprisonment on final process.
For such a proposal he 'was happy to think that he had the
sanction, not only of the commissioners upon these two oc-
casions, but also of many members of their lordships' house.
In 1844 Lord Cottenham introduced a bill for abolishing
imprisonment for debt, and upon that occasion his noble and
learned friend Lord Lyndhurst adverted very strongly
indeed to what he considered the absurdity of the existing
division between the two Courts for administering the
law of debtor and creditor, and to the injustice also of that
provision by which the after-acquired property of an insol-
vent debtor was made liable to his creditors. In addition
to the authority of Lord Lyndhurst and of Lord Cottenham
he had that of the late Lord Denman, and of two noble and
learned friends whom he now saw present, one of whom

(Lord Brougham) last session introduced a bill for
the very purpose of abolishing imprisonment for
debt. Thus fortified, he would call their lordships'
attention to the clauses with which this measure set out,
and by which imprisonment upon final process was

restrained. In future it was only to be permitted-
1, in cases where there was an apprehension of the debtor's
absconding, which their lordships were probably aware was
provided for at present under the Ist and 2d of Victoria,
and also under the absconding Debtors'Arrest Act of 1852 ;
2, where the debt had been fraudulently incurred or there
had been a vexatious defence ; 3, ar where the debt was due
in respect of damages which had been recovered in any
action of tort. In all other cases no imprisonment for debt
would be permitted. Having thus cleared the way, it
would be seen that the Insolvent Court, being de-
prived of the greater part of its functions, no longer con-
tinued to be essential. He was bound, however, to say,
that as long as imprisonment for debt had existed, and that
Court had been entrusted with the duty of discharging
debtors who were entitled to their discharge, it was quite

impossible that the law could have been better administered
than it had been by the commissioners. The Government
measure proposed to establish one Court only, which was to
be called the Court of Insolvency; but in abolishing the
Insolvent Court they proposed not to dispense immediately
with the Insolvent Commissioners. It was thought that
those gentlemen might be called into active service, and
might be employed under the new system ; and, in this way,
not only would the advantage of their services and experi-
ence be secured, but the extent of the working staff which
would be requisite would be ascertained. One Court only
being thus established for the purpose of administering one
uniform law of debtor and creditor, there then arose a ques-
tion of considerable interest and importance—namely,
whether it was possible any longer to keep up the distinc-
tion between the trader and the non-trader. Their lordships
were probably not aware that a great demand had been
made for the abolition of this distinction, and upon careful
consideration the Government felt disposed to yield to that
demand to a very considerable extent, though they thought
it impossible to do so entirely. For instance, with regard to
acts of insolvency, some were peculiar to persons in busi-
ness, and could hardly be applied to the case of non-traders,
The Government proposed therefore, that upon these three
grounds alone should the non-trader either have the benefit
of the Act or be exposed to its provisions :—first, where he
himself applied for the benefit of the Act, when his pro-
perty might be distributed among his creditors ; secondly,
where he left the country for the purpose of defeating or
delaying his creditors, or where being abroad, he remained
there with the same object; thirdly, where a judgment
having been obtained against him by a creditor, upon a
summons issued, he failed to satisfy that judgment, or to
enter into some arrangement for that purpose. In these
three cases only would the law be applicable to non-traders.
In the last of these cases the summons of a judgment credi-
tor had been introduced by analogy to a trader-debtor sum-
mons. Under the existing law a creditor might go before
a commissioner of bankruptcy, make an affidavit of his
debts, procure a summons against his debtor, and the latter,
if he disputed the debt, must arrange for having the case
tried; or, if he admitted it, and made no arrangement for
discharging it, this constituted an act of bankruptcy. The
Government thought it would be rather a strong measure
to introduce what would be equivalent to a trader-debtor
summons against a non-trader, and believed they should
sufficiently comply with the fair and just demands of credi-
tors by exposing non-traders to the consequences of not
satisfying debts to the extent he had described, where these
debts had become judgment debts and the debtor was not
prepared to make any arrangement. In bringing non-
traders within the operation of this Act, there had been
considerable apprehension, which the Government had been
obliged to meet, lest where a debtor was the owner of an
estate intail or remainder a vindictive creditor should be dis-
posed to sacrifice the interests both of the debtor and the
other creditors by anticipating the period at which it would
become available, and during the existence of the prior
estate. It was, therefore, thought desirable by the
05th clause to prevent 'a creditor from selling an estate
in tail or remainder without the consent of the debtor
during the existence of the prior estate, but leaving the
debt a charge upon the estate when it fell into posses-
sion, although the debtor might then have obtained an
order for his discharge. There was another provision
which would probably excite some discussion, and to
which he begged attention. There was, as he had al-
ready explained, a distinction between bankruptcy and in-
solvencyacquiredlnsolvency
under y
h him terhehaAd
cotb,tanainiednsohlvisencteri
exe-
cuted a warrant of attorney before his discharge,under
which
which execution might issue against
subse-
quently acquired by him. Thisdistin any' property
sidered an unjust one. Be had
and learned friend Lord L
strongly on this subject in 1844, and theco
their report in 1840 also adverted to it in thismentioned expressed
wm commissioners in
" The future liability of all insolvent debtorasy,27
opinion, a most unjust and impolitic law. The Insolventsil our
Law after !nterrupting a man in his business, taking all
property, imprisoning him lintil his place or business is
occupied, and then turning him out destitute, a proclaimed
insolvent and unworthy of trust, nevertheless expects him
at some future time to acquire property which he is to give
up for distribution
• • among his creditors. The practical
result is that he makes no exertion beyond supplying his
daily wants, and too frequently becomes a permanently
degraded character;. his family are brought up in ; hence
society loses, and the creditors do not gain."
In order to obtain execution against after-acquired property
an application must be made to the court, and it was the
practice of the court never to touch property acquired by a
man's own industry after his discharge; and with respect
to property which might have come to him by bequest, or
in a fortuitous manner, it was the custom only to take one-
third for the purpose of applying it to his creditors; and
their lordships must be aware that it was easy to defeat the
law, even to this extent, by means of secret trusts for the
benefit of the insolvent, or—what was disadvantageous to
the insolvent--by not giving him property which, but for
this unjust law, he would probably have received. He
put it, therefore, to their lordships, whether, having
now
for the first time brought non-traders under the
compsl7 powers of this act, by which arrangement they