897 



INSOLVENCY. 



INSTINCT. 



898 





perty, until the case was adjudicated by the court. In the interim, 

 the insolvent's property was vested in an official assignee appointed 

 by the court. If, on the hearing of the petition, the commissioner 

 were satisfied with the allegations which it contained, and that the 

 debts were not contracted by fraud, breach of trust, or by any pro- 

 ceedings for breach of the laws, he was empowered to make a final 

 order for the protection of the petitioner from all process, and to cause 

 his estate and effects to be vested in an official assignee, together with 

 an assignee choseu by the creditors. 



The act 7 & 8 Viet. c. 96, passed 9th August, 1844, is entitled "An 

 Act to amend the law of Insolvency, Bankruptcy, and Execution." It 

 enacts, that any prisoner in execution upon judgment in an action for 

 debt, who is not a trader, or whose debts, if a trader, are under 3001., 

 may, without any previous notice, by petition to any court of bank- 

 ruptcy, be protected from process and from being detained in prison 

 for any debt mentioned in his schedule ; and if so detained, the 

 commissioners of any bankruptcy court may order his discharge. 



The property of the insolvent may be seized for the benefit of his 

 creditors, with the exception of the wearing apparel, bedding, and 

 other necessaries of the petitioner (the insolvent under 748 Viet, 

 c. 96) and his family, and the working tools and implements of the 

 petitioner, not exceeding in the whole the value of 20/. Under the 

 748 Viet. c. 96 ( 39), if a petitioner for protection from process 

 (pursuant to the provisions of that act) shall wrongfully and fraudu- 

 lently omit in the schedule which schedule he is required to make 

 (546 Viet. c. 116) any property whatsoever, or retain or exempt out 

 of such schedule any wearing apparel, bedding, or other necessaries, 

 property of greater value than 201., he shall, upon conviction, be liable 

 to be imprisoned and kept to hard labour for any period not exceeding 

 three years. 



The 748 Viet. c. 96, made a great alteration as to debts under 201. 

 The 57th section is as follows : " Whereas it is expedient to limit the 

 present power of arrest upon final process, be it enacted, that from and 

 after the passing of this act, no person shall be taken or charged in 

 execution upon any judgment obtained in any of her Majesty's superior 

 courts, or in any county court, court of requests, or other inferior 

 court, in any action for the recovery of any debt wherein the sum 

 recovered shall not exceed the sum of 201., exclusive of the costs 

 recovered by such judgment." 



The jurisdiction of the Court of Bankruptcy under these (protection) 

 statutes was transferred to the Court for Relief of Insolvent Debtors 

 in London, and to the County Courts in country cases, by the 

 10 4 11 Viet. c. 102. 



The- 748 Viet. c. 70 (often called the Gentleman's Act) provides 

 for arrangements between persons not traders within the meaning of 

 the Bankrupt Acts, and their creditors, under the control of the Court 

 of Bankruptcy. 



The 849 Viet. c. 127 gives to creditors the' means of obtaining 

 payment of sums under 201., besides the costs of suit, by proems of 

 summoning the debtor before the court for examination, " touching 

 the manner and time of his contracting the debt, the means or pros- 

 pect of payment he then had, the property or means of payment he 

 still hath or may have, the disposal he may have made of any property 

 since contracting such debt etal." The court is empowered to make an 

 order on the debtor " for the payment of his debt by instalment or 

 otherwise ; " and if the debtor fails to attend or to make satisfactory 

 answer, or shall appear to have been guilty of fraud in contracting the 

 debt, or to have wilfully contracted it without reasonable prospect of 

 being able to pay it, or to have concealed or made away with his pro- 

 perty in order to defeat his creditors, or to have had since the judg- 

 ment wherewith to pay the debt, the court may commit him for 

 any time not exceeding forty days ; but such imprisonment will not 

 operate in satisfaction for the debt. Wearing apparel and bedding of 

 a judgment debtor, and the implements of his trade, amounting in the 

 whole to a sum not exceeding 51. in value, are exempted from seizure. 

 The proceedings upon a judgment summons under the County Court 

 Acts are of analogous description and effect. 



The law of debtor and creditor has been a difficulty in all countries. 

 In England an insolvent debtor may, in certain cases, be subjected to 

 the operation of the Bankrupt Laws. If he cannot claim the benefit of 

 the Bankrupt Laws, he is subject to the law that relates to insolvent 

 debtors. The question of arrest and imprisonment for debt has been 

 chiefly discussed with reference to insolvent debtors ; that is, the class 

 of debtors whose debts have not been contracted in the operations of 

 trade or commerce, or under such circumstances aa to bring them 

 within the Bankrupt Laws. 



The present very learned attorney-general (Sir R. Bethel) has intro- 

 duced in the present (I860) session of parliament a bill to amend the 

 law of bankruptcy ; to assimilate the law relating to insolvents who 

 are not traders to that relating to insolvents who are traders; and 

 to abolish (in practice) imprisonment for debt as a means of obtaining 

 its satisfaction. This admirable monument of Sir Richard Bethel's 

 legislative capacity will, it is to be hoped, receive the sanction of 

 parliament ; it at once received the earnest approbation of the com- 

 mercial community. 



INSOLVENCY. [BANKRUPT LAW or SCOTLAND.] We reserved to 

 this place a notice of the remedy called the process of cueio bonorum ; 

 or iurrender of goods by an insolvent debtor to his creditors on oath, 

 ARTS ASD SCI. DIV. VOL. IT. 



This process is mentioned in the earliest records of the Scotch law' 

 under the significant name of the bare-man process. It was considered 

 in the local courts, and the benefit of it was allowed, as well by way of 

 defence as by way of suit and action, the debtor swearing that he had 

 not in goods or gear beyond five shillings and a plack, and that of all 

 his gains thenceforth he should assign every third penny towards 

 payment of his debt. (Quon. Att.,c. 7; stat. Will., c. 17.) But on 

 the erection of the Court of Session, the process was drawn thither, 

 and remained there to the exclusion of the local judicatories. It then 

 also got the name of cessio bonorum, and began to be viewed through 

 the medium of the canon and civil laws : the applicant's character was 

 changed ; he was no more a bare man, or in a condition of mere 

 destitution ; he was a dyvour, or spendthrift (from the French devorer, 

 to squander or consume one's substance) ; and his state was infamous. 

 Acting on these principles the Court of Session which up till the 

 Union usurped a legislative power in many matters, in 1606 appointed a 

 pillory near the market-cross of Edinburgh, with a seat upon it, where 

 all dyvours were to be exposed on a market-day at noon, with a bonnet 

 of yellow which was to be worn by them constantly under the pain of 

 three months' imprisonment, if apprehended at any time without the 

 same. This, the dyvour'i habit, was by the same authority changed in 

 1665, and appointed to be a coat or upper garment, whereof the one 

 half should be yellow, and the other half brown, with a cap or hood of 

 the same. It was also enacted in 1685, that the insolvent^ should 

 specially prove how he became bankrupt ; and shortly afterwards he 

 was required to produce a certificate that he had been the space of one 

 month in prison. 



The consequences of such legislation might be anticipated. Con- 

 tinuance in jail was better than delivery on such terms; and 

 accordingly the jails of the kingdom were in course of time filled with 

 miserable objects. To remedy this evil an act was passed in 1696, 

 called the Act of Grace, which on the preamble that " generally the 

 burghs of the kingdom are troubled and overcharged with prisoners 

 thrust into their prisons, who have nothing to maintain themselves, 

 but must of necessity either starve or be a burden on the burgh," 

 declared it lawful to the magistrates of burghs to liberate indigent 

 debtors, if, after notice to them to that effect, the creditors failed to 

 provide them aliment at the rate mentioned in the statute. But so 

 entirely was the true source of the evil overlooked that in the same 

 year an act was passed in parliament expressly forbidding the lords of 

 session to dispense with the bankrupt hab'it in any case of ctssio bonorum, 

 unless the bankrupt's failing " through misfortune " were libelled, 

 sustained, and proved; and so late as 1775, the court refused to 

 dispense with the habit. Sounder and more humane notions began to 

 prevail however, and generally the habit was in later times dispensed 

 with by the court. These notions were unquestionably derived from 

 England ; and it is to the House of Lords, in its appellate jurisdic- 

 tion, and to the British parliament, that the present state of the 

 Scotch insolvent law, its restoration to its ancient condition, is to be 

 traced. 



The process of cestio bonorum has been modified by modern legisla- 

 tion, the "bankrupt habit" entirely abolished, and a jurisdiction in 

 ceuio conferred on the Sheriff Courts. The effect of a decree of cea>io 

 is not to discharge the debtor, but merely to relieve him from the 

 operation of personal diligence or attachment of his person. It affords 

 no protection against the attachment by his former creditors of any 

 property which he may subsequently acquire by personal industry 

 or otherwise, if the goods already surrendered fall short of extin- 

 guishing his debts. 



INSOLVENT DEBTORS. [INSOLVENCY.] 



INSPIRATION. [REVELATION.] 



INSTINCT, according to Beattie (' Moral Science,' c. ii. sec. 8), is a 

 natural impulse to certain actions which animals perform without 

 deliberation, and without having any end in view, and without knowing 

 why they do it. Lord Brougham, in his ' Dialogue upon Instinct ' first 

 published in his edition of Paley's ' Natural Theology,' in 1839, separates 

 instinct into physical and mental. He says " physical instincts are 

 independent of will or mind altogether, though they never are found 

 except where animal life and consequently mind, exists; but yet 

 mind may influence them. Just so the mental instincts are indepen- 

 dent of reason altogether, though they are found in union with it, and 

 reason may influence them." 



That the spontaneity of instinct operates unconsciously is fully 

 established by observation. A calf butts with its head before its horns 

 are grown ; and the hen broods over the eggs of another species, or 

 even simulated eggs, as patiently as over its own. Lastly, children in 

 certain states of the body are observed to devour eagerly chalk and 

 other earths which are the proper remedies for the disease, although 

 they can have no knowledge of their beneficial nature. Generally 

 indeed this involuntary direction of animal activity appears to be 

 determined by certain organic states which give rise to a vague feeling 

 of desire or aversion, whereby different species of animals are impelled 

 to pursue or to avoid particular objects as necessary for carrying out 

 the purposes of their existence. 



In the civilised state of man it is extremely difficult to distinguish 

 the effects of habit from the operations of nature, but from observation 

 of the states of childhood and barbarism the ordinary instincts of the 

 human species are apparently few in number. In children the action 



3 M 



