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consequences than simplicity in procedure, diminution of expense, and larger dividends to the creditors. These are results which might well be tolerated. One great fundamental principle as to bankruptcy ought ever to be kept in view, and predominate over all others. It is, that the trustee is substituted for the bankrupt in the distribution of the bankrupt estate equally amongst all the creditors; that the trustee acts as the agent of the creditors; and that the intervention of a Court of justice in any shape or form in bankruptcy proceedings should be reduced to a minimum. As the law now stands the Court is everything, and much useless expense is the consequence. If, however, the Present Court of Bankruptcy in London be maintained, its judicial functions ought to be enlarged so as to comprehend the winding-up of all private partnerships and joint-Stock Companies; and this duty should be discharged by the supreme judge, whose whole time, if necessary, should be devoted to the work of his Court.
Section 87.—Instead of this section, it should be enacted that, after knowledge of a petition in bankruptcy, no person, sheriff, high bailiff, or other person, should be at liberty to pay any money, or deliver any property belonging to the person against whom such petition shall have been presented; and that, by virtue of an adjudication in bankruptcy, liquidation by arrangement, or agreement for composition, all money and property shall be part of the insolvent estate. There is no valid reason why any distinction should exist between debts above or below £50; and the rule here suggested to prevent any hardship arising from creditors of small claims being deprived, for any length of time, of the money to which they are entitled, after effective legal execution and sale have been obtained, would be sufficiently effective.
Section 91.—~This section refers to the avoidance of voluntary settlements, and places a settlement of property made by a trader before, and in consideration of marriage in the position of an ordinary debt contracted for a valuable consideration. Many shameless frauds have been perpetrated upon creditors in consequence of this law. Why a wife, or her trustees, should be allowed to reap the fruits of a husband’s fraud, which in some cases have almost approached to theft, shows how favourably the law of England has looked upon the claims of a married woman. But, where a man has no property of his own at the time of his marriage, he has no right to dispose of property, of which he has obtained fraudulent possession, in such a manner as to place his wife or children in as good a situation as a creditor who has advanced, lent, or sold his property in the way of trade. The amount of a wife’s unsettled contribution to her husband’s estate should be a full legal debt; but a man before his marriage ought not to be allowed to settle more on his intended wife than the half of his clear property. To that extent, and to that alone, the law of
bankruptcy should protect provisions in marriage settlements in favour of a wife and children. This rule, or one based on
a similar view of ante-nuptial settlements, as here enumerated, would compel men to be on their guard against making highly unjustifiable appropriations of other people’s effects, and would, in the end, prevent a great deal of domestic unhappiness.
. The remaining clauses of the Act of I869 have reference to liquidation by arrangement and composition. So far as these have any practical bearing on the administration of the Court of Bankruptcy, all that can be suggested by way of amendment has already been indicated. Creditors should have the most ample power to arrange with their debtors for the settlement of their debts, as they think best for their own interests; and so long as this principle is carried into execution, the Legislature should not interfere. But, since it has been shown that, from some cause or another, insolvent estates are wound up under liquidation by arrangement and by agreements for composition, and as these seriously involve the interests of the community, and of persons whose interests, from one cause or another, are neglected, it appears to be quite reasonable, and consonant to proper legal principles, that the officials appointed by the Legislature to supervise and control the administration of the law of bankruptcy, should also have full power to investigate the whole dealings of creditors, or of trustees on their behalf, with the property of bankrupts. More especially, it would greatly contribute to the increase of the dividends payable to creditors in liquidation and composition, that all accounts for realisation and administration should be submitted to, and be approved of by the Comptroller in Bankruptcy.
This must sufiice for our consideration of the Bankruptcy Act, 1869. On a branch of the Law of Bankruptcy I wish to make a few observations. _
By the Debtors’ Act, 1869, unless in certain cases, imprisonment for debt is abolished. On the whole, it is desirable that there should be no exceptions. Practically, these exceptions apply to poor people who have run into debt with tradesmen; while debtors for large amounts are allowed to free themselves from their debts by bankruptcy, liquidation, or composition. \Vere the exemptions to the abolition of debt abrogated, thrift and frugality would be increased amongst the general community. Of course, so far as property of all kinds is concerned, it should be liable to seizure and sale in satisfaction of debt in all cases, whether the debt is great or small. To throw a working man into prison is, in many cases, to throw the prisoner upon the prison rates, and his wife and children into the workhouse. Imprisonment for debt should be abolished in every case. It is unworthy of a free state. If it must continue, the creditor should, at his own expense, keep the debtor in prison.
This article must be brought to an end. These are the chief amendments which appear to be required. The law of bankruptcy should be the same in England, Scotland, and Ireland ; and, if possible, in all the British colonies and dominions. Acts of bankruptcy should be abolished, and a debtor’s inability to pay his debts in full should be the sole ground for adjudication in bankruptcy. The law of fraudulent preference should be modified, and a fraudulent debtor should be severely dealt with by the criminal law. There should be no distinction in the law of bankruptcy between a trader and non-trader, and a debtor’s summons should not be considered as an act of bankruptcy. Bankruptcy should begin from the state of the adjudication, and the legal doctrine of relation should be abrogated. Official control and supervision should be purely administrative, and the chief oflicial in bankruptcy’ should have qualified accountants as his assistants to examine the accounts of trustees and receivers on the spot, call for vouchers, and see that, unless those authorised by law, no charges are allowed. Committees of inspection should be abolished as useless. Reputed ownership as a part of the law of bankruptcyshould be repealed. Proxies must remain. Trustees should be obliged to consign all monies received by them into banks in the name of each bankrupt estate under their management. There should be no distinction between bankruptcy and liquidation by arrangement. The law of England and Scotland as to ranking on joint and separate estates should be assimilated. All sums in the hands of trustees or receivers, as soon as a bankruptcy is closed, should be handed over to the Treasury. The payment of a higher dividend than disclosed by the results of recent bankruptcies should be enforced. The London Court of Bankruptcy should be abolished, and the Metropolitan County Courts substituted in its place; or if the London Court be retained, its jurisdiction should be extended so as to comprise the winding-up of all private partnerships and joint-stock companies. All appeals from inferior judges should be made to the Lord justices of Appeal. The common law as to payment after sale and execution, should be allowed free course, and simple knowledge of a petition in bankruptcy should be a legal stop to payment to an execution creditor. The law of voluntary settlement, by which a bankrupt now makes a settlement of his creditor's property in favour of his intended wife and his possible children. should be altered. Official supervision and control in bankruptcy should be extended to liquidations by arrangement and agreements for composition, and the official inspectors, already suggested, should have the same power as over estates in bankruptcy. Imprisonent for debt should be abolished in all cases.
VI.—CRIMINAL LAVV ABROAD AND AT HOME.
HE truth that we do not stand alone, but that our acts exercise an important influence over our neighbours,
is one which an insular people, like ourselves, does well to take home to itself from time to time, and the present moment seems a fitting one for bringing this fact before our readers, while the Stockholm International Prison Congress is fresh in our memory, and while the codification of our Criminal Law is still engaging the attention of our most eminent jurists and awaiting the sanction of Parliament. The movement for the amendment and codification of our Penal Law, with which the names of the late Mr. Russell Gurney and of Sir james Stephen, who now so fitly succeeds to the seat on the Bench, rendered vacant by Mr. Baron Cleasby’s resignation, is a movement which l1as attracted the attention of thoughtful jurists among our Continental