and indigent, and becoming debt-bound to them of all that he has. In the same connection he states that "to the effect that debtors should be feared' to deceive their creditors and should the more willingly pay their debts, in sundry places diverse shameful forms of 'dyvourie' are used and observed, for sometimes the debtor naked sits upon ane cauld stane in presence of the people; sometimes his hinderparts or hippes are dashed to ane stane; or in public place bareheaded his belt is cutted whereby he is declared indigent of gear and credit, and therefore may pass and repass when he pleases without any trouble of his creditors." He goes on to explain with reference to the cutting of the belt, that "in auld times, like as it is yet used in diverse places, ilk man carried his silver and his gold in his belt, either in ane purse hanging at the end thereof or sewed and enclosed within the same."

Sir George Mackenzie of Rosehaugh, the Lord Advocate in the days of the Covenanters, in referring to the learned Skene's exposition on dyours or dyvours in his own "Explication of the Act of Parliament of 1621 against Bankrupts," propounds the view that the word dyvour or dyour is derived from the Irish word dyer," which signifies a knave. None of the dictionaries, however, which the writer has consulted, adverts to Mackenzie's conception of the origin of the word, although Skene's exposition is freely referred to as authoritative. In "Jamieson's Scottish Dictionary (1887)" the word dyvour is stated to be derived from the French word "devoir "-duty.

In "Murray's New English Dictionary (1897)" it is laid down that a bankrupt, according to Skene, is called "dyvour" because he does his "devore" to his creditors. But, it is added, this is not logical; and it leaves the vowel and stress of the first syllable unexplained. It is further stated that the phrase "drowned in debts," used by Skene, suggests that it may be the same word as diver.

In "Wright's Dialect Dictionary" a dyvour is said to be a ne'er-do-well, a troublesome restless person, a rascal, and it seems to be used in that sense by many Scottish authors, who give various spellings of the word-diver, divor, dyver, dyvor, and dyvour. In the supplement to "Jamieson's Dictionary" it is stated that the term dyvour is still used in the west of Scotland as an epithet of opprobrium synonymous with blackguard.

In all the editions of " Goudy on Bankruptcy" there is the following note to the chapter on Imprisonment for Debt, viz.: "Till a comparatively recent period, bankrupt debtors were compelled to wear a peculiar dress composed of divers colours, called the "dyvour's habit." Hence, in our old Scotch statutes (e.g. Act, 1696,

cap. 5) the word 'dyvour' is frequently used as synonymous with bankrupt." Having in view the fact that the word dyvour was in common use in Scotland before the institution of the dyvour's habit to be presently adverted to, the writer ventures to remark that the note would appear to have been written without sufficient investigation.

In olden times the lot of the bankrupt (to use the phrase minted by Gilbert) was not a happy one. He had to suffer not only the indignity of imprisonment, but also the humiliation of being set in public on a special stone in the market-place, and of wearing a special habit or dress.

The introduction of imprisonment for debt falls to be laid to the charge of the clergy, who, prior to the Reformation, held the people of Scotland in their power and subjected them to the thunders of the church. When their power became extinct, imprisonment for debt was adopted as part of the civil code in 1563. The prisons of those days are described by Bell in his "Commentaries" as unfit even for felons, unhealthy and miserable dungeons, disgraceful to the country as places of confinement for debt. They were, in general, constructed in the heart of towns, within the walls of the burghs, which were too poor to afford the expense of large and spacious prisons. The ruling principle of the law of Scotland was that imprisonment, though necessarily left in the power of the creditor to a certain extent, was not a satisfaction for debt, nor a punishment which he might continue according to the dictates of his discretion, his revenge, or his offended pride. After a month's duration the question whether the imprisonment should be prolonged might be brought under the cognisance of a court of law and equity empowered, on the debtor giving up to his creditors all his effects and estates (the process of cessio bonorum) to liberate him from confinement, with no other condition than that of paying from his future acquisitions what might remain unsatisfied, and of being again exposed to the constraint of a prison if he should acquire the means of paying his creditors without doing so.

The indignity of wearing a special dress owes its origin to the law of France, which was very severe, not only against fraudulent bankrupts, but also against debtors innocently insolvent. It was in 1592 that the Parliaments in France established by arrêt the wearing of a green bonnet, as the habit of the cessionaire. Fourteen years after, on 17th May 1606, not long after the peaceful invasion of England by Scotsmen in the train of King James VI., our Court of Session established the "dyvour's stone" and the "dyvour's habit," shewing that in those days mercy did not season justice.

Having introduced the student to the name dyvour, it is now proposed to advert to the various Acts of Sederunt dealing with the stone and the habit. They will be found in the volume of these Acts from 1533 to 1790, published in the latter year. The first Act of Sederunt, dated 17th May 1606, which has been referred to by philosophical writers as savouring more of an Act of the Legislature than a mere Act of Sederunt, required the magistrates of Edinburgh to erect a pillory of hewn stone near to the market cross, upon the head whereof a seat or place was to be made. Thereon all dyvoris" were to be set on a market day from ten o'clock in the morning until an hour after dinner. Before being released from the Tolbooth the dyvoris were ordained, at their own cost, to buy a hat or bonnet of yellow colour to be worn by them all the time they sat on the pillory, and in all time thereafter so long as they remained dyvoris. Failure to do this rendered them liable to further imprisonment.

of being apprehended. The Lords declared that they would not dispense with the habit except in cases of innocent misfortune.

One of the first cases reported where the habit was dispensed with was that of Rutherford (5th December 1676, Dirl. Dec. 193), who, it appears, had contracted the debt for which he was imprisoned merely as a cautioner for his father; nevertheless some of the Lords hesitated in this case, being "of opinion that the Act of Sederunt made no distinction, and being made upon good consideration and conform to the practice of all other nations, that bankrupts might be known by a habit to be persons that deserved no trust, and that others might be affrighted from contracting or undergoing debts which they are not able to pay."

The Legislature, by the Scots Act of 1696 (cap. 5), enacted that the Court should not dispense with the habit unless in the summons and process of cessio the bankrupt's failing through misfortune be libelled, sustained, and proven. In spite of the Act of Parliament there seems to have been much evasion of the

On 23rd January 1673 another Act was passed reciting the previous Act, which had apparently not been observed-an indication that the state of public feeling was trending in the direction of thinking that insolvent debtors were regarded in a mistaken light, and that better notions were beginning to prevail. It ordained that all decreets of bonorum and charges to put to liberty to be raised thereupon should contain the whole of the Act of 1669, and magistrates of burghs were ordained not to put the party in whose favour the decreet and letters were granted to liberty until first he donned the habit.

On 18th July 1688 the Court in the plenitude of power provided that when any bankrupt should raise a process of cessio bonorum against his creditors he should produce a certificate by a magistrate of the burgh where he was incarcerated to the effect that he had been a month in jail. Before being released it was necessary for him to put on his head a bonnet, partly of a brown and partly of a yellow colour, with uppermost hose and stockings, half brown and half yellow, conform to a pattern to be kept in the Tolbooth at Edinburgh. The dyvour had to sit on the stone for an hour in the forenoon before being dismissed. Thereafter he was required to wear the habit under penalty

with the wearing of the habit. There was a case, however, in 1775 (Dick, 5 Brown's Supp. 411), where the Court did not dispense with the habit, as the debtor had been guilty of smuggling. This was apparently the last occasion on which the Court refused to dispense with the habit.

It was held in the case of Isobel Rowley (3rd December 1776, 5 Brown's Supp. 413) that "in a cessio bonorum the law makes no distinction as to the dyvour's habit between a male and a female prisoner; at the same time it is apparent that the habit prescribed by the Act of Sederunt was meant only for males."

In More's "Notes to Stair" (ccccxxxvii.) the case of Smith v. Likely (6th February 1813) is referred to. In that case, in regard to the relaxation of the practice of putting distinguishing dress on insolvent debtors, Lord Meadowbank said: "You . . . . for a century have had no instance of the dyvour's habit. It may have been done occasionally during that period, but now it is undoubtedly done away. According to the state of the public feeling it would be held a disgrace to the administration of public justice. It would shock the innocent; it would render the guilty miserably profligate.'

By the Act of 1836 (6 & 7 Will. IV. cap. 56) the dyvour's habit was entirely abolished, and that particular brand of infamy on a debtor was relegated finally to history. That act also permitted applications for cessio bonorum to be brought by debtors in the Sheriff Court as well as in the Court of Session, where they had been brought practically since its institution, although prior thereto debtors had been allowed

LAW.

By THEO. SOPHIAN, of the Inner Temple,
Barrister-at-Law.

V. THE POSITION OF UNDERTENANTS. Whether or not a subtenant is entitled to the protection of the Acts will depend on whether the sublease granted to him has been lawfully created, and the same principle will equally apply in the case of an assignee (sections 5 (5), 12 (1) (ƒ), 15 (3) of the Act of 1920). Thus it will be necessary to see whether the sublease or assignment was granted at a time when the tenancy of the sublessor or assignor was a contractual and not a purely statutory one, since, if the latter were the case, the purported sublease or assignment would be absolutely void, and the sublessee or assignee would acquire no right or interest in the premises (Keeves v. Dean, [1923] 2 K.B. 804). If, on the other hand, the sublease or assignment was created during the contractual tenancy, it would still be necessary to enquire whether or no there was any clause or term which prohibited the tenant from assigning or underletting the premises, and which permitted him to do so only on certain conditions, in which latter case it would be further necessary to enquire whether those conditions had been fulfilled. In short, therefore, the first question to which one must direct one's attention is whether the interest of the subtenant or assignee has been lawfully created.

On this point reference may be made, inter alia, to Brake v. Ward ([1922] L.J., 11 C.C.R. 74). There a purchaser, who had been let into possession pending completion, had purported to let the premises to a third person, X. Through the fault of the purchaser, however, the sale fell through, and the question thereupon arose as to the position of X. Inasmuch as the purchaser has to be regarded in law merely as a tenant at will, with no rent reserved, he had no power to create except as against himself any greater possessory interest in the premises than he himself had. The Court therefore held that X was not, in the circumstances, protected, as against the true owner of the premises. In Borough Permanent Benefit Building Society v. Kelly ([1924] L.J., 13 C.C.R. 60) a similar point appears to have arisen. In that case a mortgagor had purported to create a lease of the mortgaged premises. The lease, though perfectly valid as against the mortgagor, was void as against the mortgagee. The Court accordingly held that the tenant of the mortgagor was not protected as against the mortgagee. With this case, however, should be contrasted the Irish case of Martin v. Watson & Egan ([1919]

but where, nevertheless, the Irish Courts arrived at a different conclusion and held that the lessee was protected even against the mortagee. It is possible, however, to distinguish Martin v. Watson from Borough Permanent Benefit Building Society v. Kelly. Whereas in Martin v. Watson the mortgage could not be enforced against the mortgagor owing to the protection afforded by the then Rent Restriction Acts, in Borough Permanent Benefit Building Society v. Kelly the mortgage which had been effected in 1924 was outside the protection of the Rent Acts (see section 12 (4) (c) of the Act of 1920), so that the mortgagor was not protected against the mortgagee in the latter case.

The position of the undertenant during the continuance of the contractual tenancy of his immediate lessor does not call for any particular consideration, and it appears only necessary to enquire into his position when such contractual tenancy has come to an end.

Where the lessor of the undertenant is merely a statutory tenant as between himself and his own immediate lessor, he (i.e. the lessor) will lose entirely the protection of the Act if he is not in actual occupation of the premises-that is, if the decision in Hicks v. Scarsdale Brewery Ltd. ([1924] W.N. 189) is good law. And it would also appear that where the statutory tenant is in actual occupation of part only of the premises, the remainder being in the possession of his subtenant, the protection afforded him by the Acts must be confined merely to such part of the premises which he actually occupies. As regards the remainder of the premises, it is submitted that the statutory tenant's right in respect thereof will be entirely extinguished, and that his previous subtenant will thereupon become the statutory tenant of his own immediate lessor. Although there is no direct authority for this view, it would appear to be a necessary conclusion to be deduced from a consideration of the status of the statutory tenant, as indicated by the Court of Appeal in Keeves v. Dean (supra) and from the judgment itself in Hicks v. Scarsdale Brewery Ltd. (supra); although, on the other hand, the provision of section 7 (1) of the Act of 1923 would appear impliedly to militate against this view.

Where the immediate lessor of the subtenant drops out, whether voluntarily or whether by reason of his having ceased to occupy the premises (Hicks v. Scarsdale Brewery Ltd. (supra)); or again, whether by reason of an order or judgment for recovery of possession or ejectment having been obtained against him by his own immediate lessor, the position of the subtenant will be governed by sections 5 (5) and 15 (3) of the Act of

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