and indigent, and becoming debt-bound to cap. 5) the word 'dyvour' is frequently used as them of all that he has. In the same connection synonymous with bankrupt." Having in view he states that" to the effect that debtors should the fact that the word dyvour was in common be feared to deceive their creditors and use in Scotland before the institution of the should the more willingly pay their debts, in dyvour's habit to be presently adverted to, the sundry places diverse shameful forms of writer ventures to remark that the note would

dyvourie' are used and observed, for some- appear to have been written without sufficient times the debtor naked sits upon ane cauld investigation. stane in presence of the people; sometimes his In olden times the lot of the bankrupt (to hinderparts or hippes are dashed to ane stane ; use the phrase minted by Gilbert) was not a or in public place bareheaded his belt is cutted happy one. He had to suffer not only the whereby he is declared indigent of gear and indignity of imprisonment, but also the humiliacredit, and therefore may pass and repass when tion of being set in public on a special stone in he pleases without any trouble of his creditors.” the market-place, and of wearing a special habit

' He goes on to explain with reference to the or dress. cutting of the belt, that “in auld times, like The introduction of imprisonment for debt as it is yet used in diverse places, ilk man falls to be laid to the charge of the clergy, who, carried his silver and his gold in his belt, either prior to the Reformation, held the people of in ane purse hanging at the end thereof or Scotland in their power and subjected them to sewed and enclosed within the same.”

the thunders of the church. When their power Sir George Mackenzie of Rosehaugh, the became extinct, imprisonment for debt was Lord Advocate in the days of the Covenanters, adopted as part of the civil code in 1563, The in referring to the learned Skene's exposition prisons of those days are described by Bell in on dyours or dyvours in his own “Explica- his “Commentaries” as unfit even for felons, tion of the Act of Parliament of 1621 against unhealthy and miserable dungeons, disgraceful Bankrupts," propounds the view that the word to the country as places of confinement for dyvour or dyour is derived from the Irish word debt. They were, in general, constructed in "dyer," which signifies a knave. None of the heart of towns, within the walls of the the dictionaries, however, which the writer has burghs, which were too poor to afford the consulted, adverts to Mackenzie's conception expense of large and spacious prisons. The of the origin of the word, although Skene's ruling principle of the law of Scotland was that exposition is freely referred to as authoritative. imprisonment, though necessarily left in the

In “ Jamieson's Scottish Dictionary (1887)” power of the creditor to a certain extent, was the word dyvour is stated to be derived from not a satisfaction for debt, nor a punishment the French word " devoir "-duty.

which he might continue according to the In“ Murray's New English Dictionary (1897)” dictates of his discretion, his revenge, or his it is laid down that a bankrupt, according to offended pride. After a month's duration the Skene, is called “dyvour" because he does question whether the imprisonment should be his “devore ” to his creditors. But, it is prolonged might be brought under the cognisadded, this is not logical; and it leaves the ance of a court of law and equity empowered, vowel and stress of the first syllable unexplained on the debtor giving up to his creditors all his It is further stated that the phrase " drowned effects and estates (the process of cessio bonorum) in debts,” used by Skene, suggests that it may to liberate him from confinement, with no other be the same word as diver."

condition than that of paying from his future Wright's Dialect Dictionary” a dyvour is acquisitions what might remain unsatisfied, said to be a ne'er-do-well, a troublesome restless and of being again exposed to the constraint person, a rascal, and it seems to be used in that of a prison if he should acquire the means of sense by many Scottish authors, who give paying his creditors without doing so. various spellings of the word—diver, divor, The indignity of wearing a special dress owes dyver, dyvor, and dyvour. In the supplement its origin to the law of France, which was very to “ Jamieson's Dictionary” it is stated that the severe, not only against fraudulent bankrupts, term dyvour is still used in the west of Scot- but also against debtors innocently insolvent. land as an epithet of opprobrium synonymous It was in 1592 that the Parliaments in France with blackguard.

established by arrêt the wearing of a green In all the editions of " Goudy on Bankruptcy' bonnet, as the habit of the cessionaire. Fourteen there is the following note to the chapter on years after, on 17th May 1606, not long after Imprisonment for Debt, viz.: “Till à com- the peaceful invasion of England by Scotsmen paratively recent period, bankrupt debtors were in the train of King James VI., our Court of compelled to wear a peculiar dress composed Session established the “dyvour's stone" and of divers colours, called the “dyvour's habit.” the “dyvour's habit,” shewing that in those Hence, in our old Scotch statutes (e.g. Act, 1696, 1 days mercy did not season justice.

In "

a

Having introduced the student to the name of being apprehended. The Lords declared dyvour, it is now proposed to advert to the that they would not dispense with the habit various Acts of Sederunt dealing with the stone except in cases of innocent misfortune. and the habit. They will be found in the One of the first cases reported where the habit volume of these Acts from 1533 to 1790, published was dispensed with was that of Rutherford in the latter year. The first Act of Sederunt, (5th December 1676, Dirl. Dec. 193), who, it dated 17th May 1606, which has been referred appears, had contracted the debt for which he to by philosophical writers as savouring more was imprisoned merely as a cautioner for his of an Act of the Legislature than a mere Act father; nevertheless some of the Lords hesitated of Sederunt, required the magistrates of in this case, being "of opinion that the Act Edinburgh to erect a pillory of hewn stone near of Sederunt made no distinction, and being to the market cross, upon the head whereof a made upon good consideration and conform to seat or place was to be made. Thereon all the practice of all other nations, that bankrupts 'dyvoris were to be set on a market day from might be known by a habit to be persons

that ten o'clock in the morning until an hour after deserved po trust, and that others might be dinner. Before being released from the Tol-affrighted from contracting or undergoing debts booth the dyvoris were ordained, at their own which they are not able to pay.” cost, to buy a hat or bonnet of yellow colour The Legislature, by the Scots Act of 1696 to be worn by them all the time they sat on the (cap. 5), enacted that the Court should not pillory, and in all time thereafter so long as dispense with the habit unless in the summons they remained dyvoris. Failure to do this and process of cessio the bankrupt’s failing rendered them liable to further imprisonment. through misfortune be libelled, sustained, and

The Act of 26th February 1669 provided that, proven. In spite of the Act of Parliament in all decreets of bonorum to be decerned there- there seems to have been much evasion of the after, there should be an express clause ordain-law, and it was usual for the Court to dispense ing debtors to wear the habit of the bankrupt, with the wearing of the habit.

There was a which was to be donned before they came out case, however, in 1775 (Dick, 5 Brown's Supp. of prison. The habit prescribed was a coat and 411), where the Court did not dispense with upper garment, which was to cover their clothes, the habit, as the debtor had been guilty of body, and arms, whereof the one half was to smuggling. This was apparently the last be yellow and the other half brown, and a cap occasion on which the Court refused to dispense or hood for the head also of these two colours. with the habit.

On 23rd January 1673 another Act was It was held in the case of Isobel Rowley passed reciting the previous Act, which had (3rd December 1776, 5 Brown's Supp. 413) apparently not been observed an indication that “in a cessio bonorum the law makes no

that the state of public feeling was trending in distinction as to the dyvour's habit between the direction of thinking that insolvent debtors a male and a female prisoner; at the same time were regarded in a mistaken light, and that better it is apparent that the habit prescribed by the notions were beginning to prevail. It ordained Act of Sederunt was meant only for males.' that all decreets of bonorum and charges to put In More's “ Notes to Stair" (ccccxxxvi.) the to liberty to be raised thereupon should contain case of Smith v. Likely (6th February 1813) the whole of the Act of 1669, and magistrates is referred to. In that case, in regard to the of burghs were ordained not to put the party relaxation of the practice of putting distinin whose favour the decreet and letters were guishing dress on insolvent debtors, Lord granted to liberty until first he donned the Meadowbank said: “You .... for a century habit.

have had no instance of the dyvour's habit. On 18th July 1688 the Court in the plenitude It may have been done occasionally during that of power provided that when any bankrupt period, but now it is undoubtedly done away. should raise a process of cessio bonorum against According to the state of the public feeling it his creditors he should produce a certificate would be held a disgrace to the administration by a magistrate of the burgh where he was of public justice. It would shock the innocent; incarcerated to the effect that he had been a it would render the guilty miserably profligate.” month in jail. Before being released it was By the Act of 1836 (6 & 7 Will. IV. cap. 56) necessary for him to put on his head a bonnet, the dyvour's babit was entirely abolished, and partly of a brown and partly of a yellow colour, that particular brand of infamy on a debtor with uppermost hose and stockings, half brown was relegated finally to history. That act and half yellow, conform to a pattern to be kept also permitted applications for cessio bonorum in the Tolbooth at Edinburgh. The dyvour to be brought by debtors in the Sheriff Court had to sit on the stone for an hour in the fore- as well as in the Court of Session, where they noon before being dismissed. Thereafter he had been brought practically since its institution, was required to wear the habit under penalty although prior thereto debtors had been allowed

near

Cross.

to make such applications in the local Courts and entitled thereupon to give written notice of the time. Much hardship and lengthened of readiness . .,

charterers imprisonment had been endured by debtors in to have option of cancelling this charter consequence of the delay incurred by having if steamer is not ready

on.

6 A.M. to take proceedings in the Court of Session on 3rd April.” The ship arrived off Hull at instead of having recourse to local Courts, for 2 P.M. on Saturday, 31st March, but could not processes of cessio. So slow is the progress of enter the docks owing to congestion. Monday reform that it was not until 1880 that imprison- was a holiday, so that notice of readiness could ment for debt was abolished; although, as not be given till Tuesday, 3rd April. The appears from legal articles which were written charterers claimed that they were entitled to fifty years previously, the subject had received cancel the charter-party. Held that, although a good deal of consideration from Scottish no notice of readiness had been given, and members of the Legislature.

therefore the lay days had not commenced to Diligent search has been made in order to run, yet the ship was ready in terms of the ascertain when the practice of seating bank- charter-party, and the charterers were not rupts on the dyvour's stone ceased, and when entitled to cancel. Judgment of Branson J. the stone was actually removed from its site reversed.—Court of Appeal (Bankes, Scrutton, the market

The histories of and Atkin L.JJ.).-11th May 1925. Edinburgh advert to the Act of Sederunt providing for the erection of the stone, but beyond that they do not go. It can only be con- Aramayo Francke Mines Ltd. v. Eccott. jectured that public opinion was against such à humiliation, and as the wearing of the habit REVENUE-INCOME TAX-INCOME ASSESSABLE was relaxed so sitting on the stone fell into -COMPANY REGISTERED IN GREAT BRITAIN TO desuetude. The stone, therefore, served no WORK MINES IN BOLIVIA- ENTIRE CONTROL OF good purpose, and as its retention would no BOLIVIAN BUSINESS IN HANDS OF LOCAL BOARD doubt be abhorrent to the minds of reformers, OF DIRECTORS IN BOLIVIA—PRODUCE OF THE and did not have the sanction and support MINES SOLD IN THIS COUNTRY BY BROKERS ON of public opinion, it is probable that its removal COMMISSION FINDING IN FACT BY COMMISwas quietly effected to make room for much SIONERS THAT

COMPANY PARTLY needed improvements.

CARRIED ON IN THIS COUNTRY. Held that the company was assessable under Case I. of

Schedule D. Judgment of Court of Appeal MESSRS BRUCE & STODDART, 34 Bernard affirmed.—House of Lords.—18th May 1925. Street, Leith, Edinburgh, inform that Mr Stoddart has retired from the firm and Mr Bruce has assumed as a partner Mr David Scott Chalmers Watson, solicitor, who has been

LAW LIBRARY. their assistant for some years. The business will continue to be carried on in the same firm

BOOK NOTICE.

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Mews' Digest of English Case Law to the end of

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London : Sweet & Maxwell Ltd ;
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The ambitious aim of this Digest is to provide AFFREIGHTMENT

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-CANCELLING Courts which can be of use to the present-day CLAUSE_READINESS TO LOAD.—A ship was lawyer, with a large selection of Scots and Irish chartered to load a cargo at Hull. The charter

Obsolete cases, whether by reason of party provided, inter alia, “3. B. . Time legislation or otherwise, are generally excluded. to count when notice of readiness is handed in The work is done on an analytical method, and to the office of the charterers' agents on week the classification is in the main on the lines of days between 9 A.M. and 6 P.M. and noon on the earlier Mews' Digest, which has so long Sundays." 7. If steamer be prevented from been familiar. The whole work is to be comentering harbour .. by reason

pleted in not more than twenty-four volumes gestion she is to be treated as a ready and will be an exhaustive and valuable comsteamer from first high-water after arrival pendium of English law.

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a

SOME ASPECTS OF RENT RESTRICTION 2 I.R. 332), where the facts were very similar, LAW.

but where, nevertheless, the Irish Courts arrived

at a different conclusion and held that the lessee By THEO. SOPHIAN, of the Inner Temple, was protected even against the mortagee. It Barrister-at-Law.

is possible, however, to distinguish Martin

v. Watson from Borough Permanent Benefit V. THE POSITION OF UNDERTENANTS.

Building Society v. Kelly. Whereas in Martin Whether or not a subtenant is entitled to the v. Watson the mortgage could not be enforced protection of the Acts will depend on whether against the mortgagor owing to the protection the sublease granted to him has been lawfully afforded by the then Rent Restriction Acts, in created, and the same principle will equally Borough Permanent Benefit Building Society apply in the case of an assignee (sections 5 (5), v. Kelly the mortgage which had been effected 12 (1) (f), 15 (3) of the Act of 1920). Thus in 1924 was outside the protection of the Rent it will be necessary to see whether the sub-Acts (see section 12 (4) (c) of the Act of 1920), lease or assignment was granted at a time so that the mortgagor was not protected against when the tenancy of the sublessor or assignor the mortgagee in the latter case. was a contractual and not a purely statutory The position of the undertenant during the one, since, if the latter were the case, the continuance of the contractual tenancy of his purported sublease or assignment would be immediate lessor does not call for any particular absolutely void, and the sublessee or assignee consideration, and it appears only necessary to would acquire no right or interest in the enquire into his position when such conpremises (Reeves v. Dean, [1923] 2 K.B. tractual tenancy has come to an end. 804). If, on the other hand, the sublease or Where the lessor of the undertenant is assignment was created during the contractual merely a statutory tenant as between himself tenancy, it would still be necessary to enquire and his own immediate lessor, he (i.e. the whether or no there was any clause or term lessor) will lose entirely the protection of which prohibited the tenant from assigning or the Act if he is not in actual occupation underletting the premises, and which permitted of the premises—that is, if the decision in him to do so only on certain conditions, in Hicks v. Scarsdale Brewery Ltd. ([1924] W.N.

, which latter case it would be further necessary 189) is good law. And it would also appear to enquire whether those conditions had been that where the statutory tenant is in actual fulfilled. In short, therefore, the first question occupation of part only of the premises, to which one must direct one's attention is the remainder being in the possession of his whether the interest of the subtenant or assig- subtenant, the protection afforded him by the nee has been lawfully created.

Acts must be confined merely to such part of the On this point reference may be made, inter premises which he actually occupies. As regards alia, to Brake v. Ward ([1922] L.J., 11 C.C.R. the remainder of the premises, it is submitted 74). There a purchaser, who had been let into that the statutory tenant's right in respect possession pending completion, had purported thereof will be entirely extinguished, and that to let the premises to a third person, x. his previous subtenant will thereupon become Through the fault of the purchaser, however, the statutory tenant of his own immediate the sale fell through, and the question thereupon lessor. Although there is no direct authority arose as to the position of X. Inasmuch as the for this view, it would appear to be a necessary purchaser has to be regarded in law merely as a conclusion to be deduced from a consideration tenant at will, with no rent reserved, he had no of the status of the statutory tenant, as indicated power to create except as against himself any by the Court of Appeal in Keeves v. Dean (supra) greater possessory interest in the premises than and from the judgment itself in Hicks v. Scarshe himself had. The Court therefore held that dale Brewery Ltd. (supra); although, on the X was not, in the circumstances, protected, as other hand, the provision of section 7 (1) of against the true owner of the premises. In the Act of 1923 would appear impliedly to Borough Permanent Benefit Building Society militate against this view. v. Kelly ([1924] L.J., 13 C.C.R. 60) a similar here the immediate lessor of the subtenant point appears to have arisen. In that case a drops out, whether voluntarily or whether by mortgagor had purported to create a lease of the reason of his having ceased to occupy the mortgaged premises. The lease, though per- premises (Hicks v. Scarsdale Brewery Ltd. fectly valid as against the mortgagor, was void (supra)); or again, whether by reason of as against the mortgagee. The Court accord- an order or judgment for recovery of possesingly held that the tenant of the mortgagor was sion or ejectment having been obtained against not protected as against the mortgagee. With him by his own immediate lessof, the posithis case, however, should be contrasted the tion of the subtenant will be governed by Irish case of Martin v. Watson & Egan (1919) sections 5 (5) and 15 (3) of the Act of

Y

1920. The subtenant, if his subtenancy has of 1920 arise, by serving C with a notice of been created lawfully and at some time increase, and that A in the circumstances will prior to the commencement of proceedings for not have to wait until the expiry of the original recovery of possession against his own lessor, period agreed upon between C and B before he will be entitled to remain in possession, and his will be entitled to increase C's rent. Again, I am position it appears must necessarily be that of a unaware of the existence of

any direct authority statutory tenant to the lessor of his own immedi- on this point, but it would appear to be one ate lessor. The terms of his statutory tenancy, which must have come up for consideration by however, will be governed, not by the terms on the Courts at some time or other. which his own lessor held the premises, but the Mention might also be made in this connection terms on which he himself held the premises of of the express conditions referred to in subhis own lessor, subject, of course, in any event, sections (1) and (2) of section 15 of the Act of to the overriding provisions of the Acts them- 1920, which are made conditions of the statutory selves. His position will therefore be exactly tenancy; and attention should be drawn to the same as before, except for the fact that his section 16 (2) of the same Act, which provides tenancy, if previously a contractual one, will that it shall be deemed to be a condition of necessarily have become a statutory one, and the tenancy of any dwelling-house to which this that a substitution of landlords will have taken Act applies, that the tenant shall afford to the place.

landlord access thereto, and all reasonable The position of a person who becomes a facilities for executing therein any repairs which statutory tenant in this manner is somewhat the landlord is entitled to execute. different from the position of a person who In conclusion, reference should also be made becomes a statutory tenant in the ordinary to section 7 of the Rent and Mortgage Interest way after the determination of his term, Restrictions Act, 1923, which provides for certain whether by notice or by effluxion of time. increases of rent in the case of subtenancies. First, as regards the duration of the statutory These increases are on the same footing as the tenancy created in this manner, the statutory other increases permitted by section 2 (1) of “subtenant”-if I may use this expression- the Act of 1920, with the exception that no will be entitled to remain in possession for the notice of increase is necessary. Shortly, the inperiod originally agreed upon between him and creases permitted by section 7 (1) of the 1923 his previous lessor—that is to say, if his original Act are as follows: The immediate landlord lessor had power to create a sublease for such of the subtenant will be entitled to an additional a period. To take the following illustration : increase of 10 per cent. of the net rent of the A lets to B for seven years for £100. B, after“ dwelling-house” contained in the subtenancy, being in occupation for one year, lawfully sub- and the landlord of the tenant's landlord will lets for five years to C for £100. A obtains an be entitled to an additional increase of rent order for possession against B. C will thereupon equivalent to half that amount, viz. 5 per cent. become A's statutory tenant, but C will never- of such net rent. theless be entitled to remain in possession till the expiry of the period originally agreed upon between himself and B. And this may have an important bearing on the right of A to in- THE LAW RELATING TO MONEYcrease C's rent. Thus, to take the above illus

LENDERS AND THE PROPOSED tration again, when C becomes A's statutory

CHANGES. tenant, will A have the right immediately to increase C's rent by the amounts permitted by

By Hon. D. MESTON, of Lincoln's Inn,

Barrister-at-Law. the Acts, or will he be unable to do so until the original period for which C had rented the In the course of the last few months the premises has expired ? If one refers, however, undesirable activities of money-lenders have been to section 3 (1) of the Act of 1920, it will be the object of renewed public attention, and it found that the wording of the Act is as follows: must be a matter of satisfaction to most people “Nothing in this Act shall be taken to authorise that Parliament is now fully cognisant of the any increase of rent except in respect of a evils attendant upon borrowing money from period during which but for this Act the land- professional money-lenders at the present day. lord would be entitled to obtain possession.” The exigencies of space do not permit of an Now, as against C, A would have been entitled exhaustive account of the various statutes to obtain possession but for the Act, and there which have been passed from time to time in seems no reason, therefore, why one should not this country in regard to the taking of usury; hold that A, in the circumstances, will be nor is such an account necessary, for in the entitled to raise C's rent as and when the year 1854 an Act was passed by which "all occasions provided for by section 2 of the Act existing laws against usury were repealed.