..y,'ii OJnnipU Haul i>rl|nnl IGibrara Cornell University Library KD 2149.M97 1863 Manual of the law of Insolvency and bank 3 1924 021 858 943 MANUAL LAW OF INSOLVENCY AND BANKRUPTCY Cornell University Library The original of tiiis bool< is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924021858943 MANUAL LAW OF INSOLVENCY AND BANKRUPTCY ; COMPEEHBNDING A TREATISE ON THE LAW OE INSOLVENCY, NOTOUE BANKRUPTCY, COMPOSITION -CONTRACTS, TRUST-DEEDS, CESSIOS, AND SEQUESTRATIONS; ANNOTATIONS ON THE VARIOUS INSOLVENOY AND BANKRUPTCY STATUTES; AND WITH FOKMS OF PEOCEDUEE APPLICABLE TO THESE SUBJECTS. JAMES MURDOCH, MEMBER OF THE FACTTLTT OF PROCURATORS IN GLASGOW. THIRD EDITION. EDINJBUEGH: WILLIAM BLACKWOOD & SONS. GLASGOW : JOHN SMITH & SON. MDCCCLXIII. " In the law of Scotland all harsh and sudden proceedings for th.e recovery of debt have heen restrained by a spirit of forbearance towards the debtor, happily enough combined with, precautions for the safety of the creditors. " — Professor Bell. HUGH BAECLAY, ESQ., LL.D. SHERIFF-SUBSTITUTE OF PEETHSHIEE THIS VOLUME RESPECTFULLY INSCRIBED CONTENTS. PART I. TRRA.TISE ON INSOLVENCY AND BANKRUPTCY. CHAPTER L IB"SOLVENOY. PAGE Sect. 1. Definitions, ....... 1 (1.) Of Insolvency in a Question witli Debtor, . . 1 (2.) Of Insolvency in a Question between Creditors, . 2 (3.) Of Insolvency in a Judicial Sale and Ranking, . 2 Sect. 2. Effects of Insolvency, ...... 2 (1.) Does not ^er se Incapacitate from Transacting, . 2 (2.) Insolvent cannot make Gratuitous Alienations by Com- mon Law, ...... 3 (3.) Insolvent cannot make Gratuitous Alienations by Act 1621, c. 18, Part I., . . . . . 4 (4.) Insolvent cannot grant Preferences by Common Law, 6 (5.) Insolvent cannot grant Preferences by Act 1621, c. 18, PartlL, 7 (6.) Insolvent's Heritable Property subject to Judicial Sale, 8 CHAPTER IL . NOTOUR BANKRUPTCY. Sect; 1. Constitution of Notour Bankruptcy, .... 9 Sect. 2. Termination of Notour Bankruptcy, .... 10 Sect. 3. EflfectS of Notour Banbruptcy, . . . .10 (1.) It Invalidates Voluntary Preferences to Creditors within Sixty Days, ...... 10 (2.) It Invalidates certain Preferences by Legal Diligence within Sixty Days, ..... 12 (3.) It subjects Debtor to Sequestration, ... 13 Vlll CONTENTS. CHAPTEE III. EXTRAJUDICIAL COMPOSITION CONTRACTS. Sect. 1. Constitution of Contract, Sect. 2. Termination of Contract, Sect. 3. E\ddenoe of Contract, . Sect. 4. Rights and Powers of Parties, Sect. 5. Duties and Liabilities of Parties, Sect. 6. Law Procedure against Parties, PAOK 14 15 15 16 17 18 Sect. 1. Sect. 2, Sect. 3, Sect. 4, Sect. 5. Sect. 6. CHAPTEE IV. TRirST-DEEDS. Constitution of Trust, . TeiTaination of Trust, . Evidence of Trust and Accession, Eights and Powers of Parties, Duties and Liabilities of Parties, Law Procedure against Parties, 19 20 21 21 24 25 CHAPTEE V. CESSIOS. Sect. 1. Object of the Process, . Sect. 2. Effects of Decree, Sect. 3. Title to Sue, . Sect. 4. Jurisdiction, Sect. 5. Procedure in Court of Session, Sect. 6. Procedure in the Sheriff Court, Sect. 7. Grounds of Objection to the Cessio, 26 26 26 27 27 32 40 CHAPTEE VI. SEQUESTRATIONS. Sect. 1. Of the Bankrupt, .... (1.) Requisites of Sequestration, (2. ) Termination of the Bankruptcy, (3.) Evidence of the Sequestration, (4. ) Status or Personal Rights of Bankrupt, (5. ) Rights of Property in the Bankrupt, . (6.) Powers of Bankrupt, (7.) Duties of Bankrupt, (8.) Law Procedure against Bankrupt, Sect. 2. Of Ordinary Creditors, (1.) Requisites for Petitioning or Concurring in for Sequestration, (2. ) Requisites for Voting and Acting, (3. ) Requisites for Ranking, (4. ) Evidence of Qualifications of Creditors, (5. ) Mode of Computing Majorities of Creditors, a Petition 41 41 44 52 53 54 57 60 61 64 64 65 68 70 72 CONTENTS. IX PAGE (6.) Keqiiisites to the Constitution of Meetings, . . 73 (7.) Rights of Creditors in Estate, ... 76 (8.) Powei-s of Individual Creditors, ... 78 (9. ) Powers of Majorities of Concm-ring Creditors, . 82 (10.) Powers of Majorities of Creditors at Meetings, . 83 (11.) Liabilities of Creditors, .... 85 Sect. 3. Of Preferable Creditors, ..... 87 (1.) Creditors holding Preferences over General Estate, . 87 (2.) Rights of Preferable Creditors in Estate generally, . 87 (3.) Rights of Heritable Creditor in Subject of Security, (4.) Rights of Adjudger in Subject of Security, . . 89 (5. ) Rights of Inhibiter in Subject of Security, . . 89 (6. ) Rights of Creditors of Bankrupt's Ancestor in Subject of Security, . . . . . . .89 / (7.) Rights of Landlord in Subject of Security, . . 90 ,' (8. ) Rights of Arrester in Subject of Security, . . 90 (9.) Rights of Poinder in Subject of Security, , . 90 (10.) Rights of Law- Agent in Subject of Security, . . 90 (11.) Rights of Holder of Lien generally in Subject of Security, 91 4. Of the Trustee, ...... 91 (1. j Election and Confirmation, .... 91 (2.) Termination of his OlRce, .... 93 (3. ) Evidence of Trustee's Appointment, ... 95 (4.) Trustee's Right of Property in Estate, . . . 96 (5. ) How Triistee's Right completed, ... 97 (6.) Trustee's Right in Competition with other Rights, (7.) Trustee's Right of Management where no Right of Property, (8.) Powers of Trustee, (9. ) Duties of Trustee, (10.) Liabilities of Trustee, (11.) Law Procedure against Trustee, 5. Of Judicial Factor, (1.) Appointment, . (2. ) Discharge of Factor, . (3.) Evidence of Appointment, (4. ) Powers of Judicial Factor, (5. ) Duties of Judicial Factor, (6.) Procedure against Factor, Of the Commissioners, (1.) Constitution and Termination of Office, (2.) Powers of Commissioners, (3.) Duties of Commissioners, (4.) Liabilities, (5. ) Law Procedure against Commi; Of the Law- Agent, (1.) Nature of Office, (2.) Rights of Law- Agent, (3. ) Powers of Law- Agent, (4.) Duties of Law- Agent, (5.) Liabilities of Law- Agent, (6. ) Law Procedure against Law- Agent, Sect. 6 Sect. 7, 101 102 106 115 117 119 119 119 120 120 120 120 121 121 122 123 124 124 126 126 126 126 127 127 127 X CONTENTS. PAGE Sect. 8. Of the Cautioner for Trustee, .... 127 (1.) Liabilities of Cautioner, .... 127 (2.) Law Procedure against Trustee's Cautioner, . . 128 Sect. 9. Of the Court of Session, ..... 129 (1.) Appellate Jurisdiction, .... 129 (2.) Original Jurisdiction, . . . .131 (3.) Functions of the Court, and Forms of Procedure, . 132 Sect. 10. Of the Sheriff Court, ..... 146 (1.) Appellate Jurisdiction, .... 146 (2.) Original Jiu-isdiction of the Sheriff, . . . 147 (3. ) Functions of the Sheriff Court, and Forms of Procedure, 148 Sect. 11. Of the Accountant in Bankruptcy, (1.) Appointment, (2. ) Functions of Accountant, Sect. 12. Of the BiU Chamber Clerk, . Sect. 13. Of the Sheriff Clerk, Sect. 14. Of the Officers of Court, 163 163 164 167 167 169 PART II. STATUTES ON INSOLVENCY AND BANKRUPTCY. WITH NOTES. Act 1621, c. 18, ....... 175 Act 1696, c. 5, 183 Cessio Act, 1836, ....... 189 Act of Sederunt to regulate Proceedings in Processes of Cessio Bono- rum before the Court of Session, 1838, .... 197 Act of Sederunt regulating Processes of Cessio Bonorum in Sheriff Courts, 1839, ....... 203 Bankruptcy (Scotland) Act, 1856, ..... 211 Act of Sederunt for further regulating Proceedings in Sequestrations awarded previous to 1st November 1856, .... 350 The Bankruptcy and Real Securities (Scotland) Act, 1857, . . 351 The Bankruptcy (Scotland) Amendment Act, 1860, . . . 355 Abstract Notes issued to Trustees by Accountant in Bankruptcy, . 358 Abstract Notes issued to Commissioners by Accountant in Bankruptcy, 370 PAET III. FOBMS IN INSOLVENCY AND BANKRUPTCY. 1. Summons of Reduction under Act 1621, .... 375 2. Smnmons of Reduction under Act 1696, .... 376 3. Extrajudicial Composition Contract, .... 377 4. Trust-Deed, ....... 377 5. Summons of Participation in the Proceeds of a Poinding and Sale, 381 CONTENTS. XI 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. Mandates by Debtors to apply for Sequestration, Petition by Creditors for Appointment of Judicial Factor, and Deliverance tbereon, ..... Form of a Bond of Caution for Judicial Factor where Sequesti tion has been awarded, .... Form of Bond where Sequestration has not been awarded, Petition by Creditor for Warrant to lock up Premises, and De- liverance thereon, ...... Petition for Sequestration by Debtor with concurrence of a Cre ditor, and Deliverance thereon, &c., . Petition for Sequestration by a Creditor without the Debtor consent, and First Deliverance thereon. Minute for Sequestration after Citation and Advertisement, Gazette Notice imder Application by Creditor for Sequestration without Debtor's consent, .... Second Deliverance thereon, .... Petition for Sequestration of a deceased Debtor's Estates, at the instance of a Mandatory, .... Petition for Sequestration of a deceased Debtor's Estates, at the instance of a Creditor, and DeUverauce thereon. Gazette Notice and Minute for Sequestration after Citation and Advertisement, ..... Oath by Petitioning or Concurring Creditor, Oath for Voting, ...... Oath for Ranking, ..... General Variations in the Form of Oaths, whether for Petition ing, Voting, or Ranking, .... Abbreviates for the Register of Inhibitions, and Certificate by Keeper, ...... Gazette Notice of Sequestration, .... Petition for Recall of Sequestration, and Gazette Notice, Petition for Sist of Sequestration, and Debveranoes thereon. Deed of Arrangement and Deliverances thereon, with Declaration by Bankrupt, ...... Petition by the Bankrupt for Liberation, and Deliverances there on, &c., ...... Petition for Valuation of Annuity, and Deliverances thereon. Petition to compel Creditor to Assign Security, . Minutes of First General Meeting of Creditors, with Report and Deliverances, &,c., ..... Note of Objections, ..... Bond of Caution for Trustee, .... Act and Warrant of Confirmation of Trustee, Abbreviates for Register of Adjudication, and Certificate, Gazette Notice of Trustee's Appointment and of Second Meeting, Gazette Notice calling Meeting for Election of a new Commis- sioner, ...... Petition for Election of new Trustee, and Deliverance thereon. Gazette Notice caUiug Meeting for Election of new Trustee, Petition for Renewal of Personal Protection, and Deliverance thereon, ...... Inventory and Valuation of Estate made up by Trustee, PAGE 382 383 384 384 385 386 388 390 391 391 391 392 394 395 396 398 399 401 401 401 402 404 408 409 411 412 416 417 417 417 417 418 418 419 419 420 Xll CONTENTS. 42. State of Affairs made up by Bankrupt, . 43. Petition to compel Bankrupt to Grant Deed, 44. Petition for Dismissal of Trustee, 45. Petition against Trustee to Accoimt, 46. Petition for Bankrupt's Examination, Witt Deliverances ; also Warrant of Commitment, &0., 47. Circular by Trustee to Creditors intimating Bankrupt's Examin ation, &c., ...... 48. Petition for Examination of Third Parties, and Deliverance thereon, . ..... 49. Specimens of Interrogatories to be put to Bankrupt, 50. Report by Trustee to Second General Meeting, 51. Minutes of Second General Meeting of Creditors, 52. State of the Estate, of Funds Recovered, and Property Out- standing, .....•• 53. Account-Current or Progressive State of Trustee's Intromissions, 54 Account of Trustee's Management, and Certificate by Commis- sioners, ...... 55. Minute of Meeting of Commissioners, 66. Adjudication on Claims by Trustee, 67. List of Creditors Ranked, .... 58. List of Creditors Rejected, .... 59. Gazette Notice intimating First Dividend, 60. Circular to Creditors intimating Dividend, 61. Note of Appeal against Trustee's Deliverance, 62. Scheme of Division, . . . ■ 63. Petition for Acceleration of Dividend, Deliverance thereon, and Gazette Notice, ..... 64. Gazette Notice intimating Postponement of Dividend, . 65. Gazette Notice calling Meeting of Creditors to consider Offer of Composition, ...... 66. Offer of Composition, ..... 67- Gazette Notice intimating that Offer of Composition had been made, and calling Meeting, .... 68. Circular by Trustee, intimating Offer of Composition, and calling another Meeting, ...... 69. Bond of Caution for Composition, .... 70. Report by Trustee on Offer of Composition, 71. Certificate by Trustee to enable Creditor to recover Composition, 72. Dehverance Approving of Offer of Composition, 73. Deliverance Approving of Offer of Composition made by Executrix 74. Declaration by Bankrupt, ..... 75. Declaration by Executrix, .... 76. Discharge to Bankrupt, ...... 77. Discharge to the Partners of a Company, as Partners and as In- dividuals, ....... 78. Discharge to the Partners of a Company, as Partners, . 79. Discharge to the Partners of a Company, as Individuals only, . 80. Discharge to one Partner of a Company, as Partner and as an Individual, ..... 81. Discharge to a Partner offering a Composition on the Company's Estate, .... . . PAGE 420 422 423 424 425 428 428 429 430 431 432 432 433 436 437 439 439 440 440 441 441 442 444 444 444 445 445 446 448 448 449 449 450 450 450 451 451 452 452 452 CONTENTS. XIU PAGE 82. Discharge to au Executrix, .... 453 83. Discharge to the Heir of a Bankrupt, .... 453 84. Discharge to a Successor where the Bankrupt has died after Sequestration, ...... 454 80. Gazette Notice of Meeting of Creditors for Winding up Estate, 454 86. Petition for Trustee's Discharge where Estate wound up by Com- position Contract, ...... 455 87. Petition for Bankrupt's Discharge without a Composition, . 456 S8. Report by the Trustee on Conduct of Bankrupt, . . 457 89. Concurrence by Creditors to Discharge of Bankrupt without Composition, ....... 458 90. Gazette Notice of Petition by Bankrupt for Discharge without Composition, ....... 458 91. Deliverance finding Bankrupt entitled to Discharge, . . 458 92. Declaration by Bankrupt, ..... 459 93. Discharge of Bankrupt without Composition, . . . 459 94. Abbreviate, &e., of Bankrupt's Discharge, . . . 460 95. Siuumons of Multiplepoinding against Creditor who has obtained Preference for his Concurrence in Bankrupt's Discharge, . 460 96. Gazette Notice calHng Meeting to consider as to Trustee's Dis- charge, ....... 461 97. Circular to Creditors in reference to Trustee's Discharge, . 461 98. Petition for Trustee's Discharge after Final Division of Funds, and Dehverance thereon, ..... 461 99. Petition to upUft Dividend, ..... 463 100. Report by Trustee to SheriflF of Resolution of Creditors that Bankrupt only entitled to Decree of Cessio, . . . 464 101. Note of Appeal to Sheriff against Resolution of Creditors, . 464 102. Note of Appeal from Sheriff to Court of Session, . 465 103. Petition for Warrant to open Post Letters, . . 465 104. Vidimus of the ordinary steps of Procedure in a Sequestration, 466 EXPLANATION OF ABBREVIATIONS. 2 B. C. 162. Bell's Commentaries, 5th edition, volume 2, page 162. B. P. 255. Bell's Principles, paragraph 255. D. 1210. Morrison's Dictionary of Decisions, page 1210. D. App. Bt., No. 24. Morrison's Dictionary of Decisions, Appendix, voa Bankrupt, No. 24. E. 1. 1. 4. Erskine's Institutes, book 1, title 1, section 4. P. C. Faculty Collection of Decisions. H. Hume's Decisions. Jur. Jurist Collection of Decisions. 3 Mur. 515. Murray's Jury Reports, volmne 3, page 515. S. or s. Section. 2 S. (Ap.) 349. Shaw's Appeal Cases, volume 2, page 349. 1 S. & M. 767. Shaw and M'Lean's Appeal Cases, volmne 1, page 767. S. 1. 9. 15. Stair's Institutions, book 1, title 9, section 15. 1 Stuart, 165. Stuart's Appeal Cases, voliune 1, page 165. 5 W. S. 256. Wilson and Shaw's Appeal Cases, volume 5, page 256. N.B. — Where a case is cited without reference to any collection of Reports, it will be found in ' Shaw & Dunlop's Cases.' INTEODUCTION. A FEW remarks on the working of the Scottish Insolvency and Bankruptcy System of Laws, as well as on the law of Debtor and Creditor — of which they form a part — will perhaps be use- ful as a key to the contents of the following pages. The relation between debtor and creditor is usually consti- tuted, according to the law of Scotland, in these four ways — viz. : 1. By Consent. — The obligation may be founded upon con- sent, and the consent may be in the form of a contract between the parties, or a promise on the part of the debtor, and it is of no consequence whether there has been any value or considera- tion given for the debt. 2. By Wrong. — A debt may be constituted by the commission of a wrong. It may be a wrong done to person, property, or reputation, and, in any of these cases, the wrong-doer becomes a debtor iu reparation of the injury done. 3. By Equity. — A party becomes a debtor without the grant- ing of consent or the commis.sion of wrong, but simply on prin- ciples of equity: e.g., where the goods of another are cast over- board in order to lighten a ship and save the cargo ; also where his property is benefited by another party bona fide building upon it in the belief that it is his own, and with no view to a donation. In these cases the party benefited is liable in recom- pense. 4. By Relationship. — A debt is incurred by consanguinity or natural relationship, such as that of parent and child, in the case where the one is unable to support himself while the other is able to support both. XVI INTflODUGTION. A claim may be established or cut down by three kinds of evidence : 1. By writing ; 2. By oath ; and, 3. By witnesses. The debt may in all cases be proved or disproved by writing or oath — i. e., it may be proved by the writing or oath of the debtor, or disproved by the writing or oath of the creditor. But proof by witnesses is more circumscribed ; for while, as a general rule, all contracts may be so proved, yet, where there has been no consideration for the debt, it can only be evidenced by the writing or oath of the debtor. The first mode of proof is incomparably the best ; for the pos- session of a writing — such as a bill of exchange — enables the creditor within a week to put the debtor in prison or attach his goods. No process is required to constitute the debt — the mere possession of such a document puts the debtor, and not the creditor, in the position of pursuer ; for if the debtor has any objection to the debt he must raise a process of suspension at his own instance, and before he is allowed to proceed he must, as a rule, consign in court the amount of the bill, or find secu- rity for the payment of it. When no such writing exists, but the debt stands on an open account, a regular process for ob- taining a decree must be raised by the creditor, during which the debtor may, if he is so disposed, put the creditor to vast expense and trouble : he may take advantage of all the forms of court ; he may have a pleading at every stage ; he may cause the creditor to prove his whole case ; and, in addition to this, the creditor, in such instances, always runs the risk of losing the evidence of his witnesses from death and other causes. Where the creditor has no such document as a bond or a bill, but requires to raise a law process for the purpose of obtaining such judgment or decree, the result is to put him in the same position practically as if he had had a bond or bill. This process must be raised in Scotland. No process raised in any foreign court against a person whose domicile is in Scotland is of any avail. In matters of civil jurisprudence, England, Scotland, and Ireland are foreign countries to each other. Where the debt does not exceed ^12, it falls to be raised in the Sheriff's Small Debt Court. From this court there is no appeal, either on the law or the evidence. Where the debt is above .£'12, the process may be raised either in the Court of Session or in the Sheriff Court of the county INTKODUCTION. XVU where the debtor's domicile is, and in the case of a company, where it has a place of business. In either the Court of Session or Sheriff Court a process may be raised for any amount, how- ever large. Appeals are competent from both courts. Where the creditor has thus raised a process and obtained a decree, or, in the event of his having a bill, where he has it protested, and the protest recorded, and a decree got thereupon, and which he gets as a matter of form upon maldng application for it, then he proceeds to put the decree in execution against the debtor. Where the debtor is solvent, and is simply unwil- ling to pay, or dilatory in paying, then the creditor has three remedies — viz. : 1. Against the Debtors Person. — He may put the debtor in prison, where he remains until he pays the debt and costs, or until he is liberated by any of the law processes after-mentioned, raised on the ground of want of aliment-money being paid in by the creditor, or for cessio ionorum, or for sequestration. Where the debtor, on his incarceration, has funds sufficient for his sup- port he supports himself ; if he cannot, then the creditor has to provide an aliment for him. The imprisonment of the debtor does not extinguish the debt, and is not only no bar to the cre- ditor attaching his estates at the same time, but does not prevent the creditor from liberating him and thereafter reincarcerating him after a lapse of time or on a change of his circumstances. It may be remarked, that while the creditor is pursuing a process so as to obtain decree, and while he is not yet in a position to put the debtor in prison, he is nevertheless allowed to apprehend the debtor, and make him find security in the case of his intend- ing to leave Scotland to avoid his creditors. 2. Against the Bettor's Heritable Estate. — The creditor may raise a process of adjudication so as to attach the debtor's lands and heritages. By this step the Court allows the cre- ditor to enter into possession of the property by himself or a factor, and draw the rents, and ultimately to have it declared to belong to him in satisfaction of his debt ; or, by a separate pro- cess, he may have it sold for payment. It has here to be re- marked, that while the creditor is pursuing a process so as to obtain decree to enable him thus to attach these estates, and where he fears that the debtor may sell or mortgage them so as to defeat the creditor's measures, the law allows the creditor to raise an inhibition, which has the effect of preventing such a h XVlll INTRODUCTIOK. fraud, and gives the creditor, besides, a preference over all sub- sequent creditors. 3. Against the Debtor's Moveable Property. — The creditor may put the decree in force against the debtor's goods. Where the goods are in his own possession, the creditor sends an officer of Court to poind them, and thereafter to have them sold for the debt and costs. Where the goods are in the possession of a third party, or in the ease of book-debts or a bank - account, then an arrestment is used, which has the effect of attaching them in that party's hands, and thereafter a process of forth- coming is raised to obtain the warrant of the Court, ordering the money to be handed over to the creditor in payment of debt and costs, or to have the goods sold for that purpose. It has also to be remarked, that while the creditor is pursuing a process for decree, he may get a warrant from the Court at any time to attach the debtor's bank-account or book-debts, or goods in the hands of any third party, in security of his claim. When the debtor is insolvent it becomes a question for the consideration of the parties interested whether the debtor should have a voluntary settlement with his creditors, or whether he should assign his estates to a trustee for the creditors, or whether he should simply be put in prison and his estates attached by each creditor at his own hand, or whether a sequestration should be taken out for the benefit of all. The procedure may thus be extrajudicial or judicial. The extrajudicial procedure may be by composition-contract, or by trust-deed. Where it is desirable that the debtor should carry on his trade, and not be dispossessed of his premises and estates, the obvious course is to carry through a settlement by composition-contract. It may be done in two ways — either by the debtor making a set- tlement with each creditor individually, or by carrying through an arrangement with all the creditors. In the former case, the debtor and each creditor will of course arrange what terms of settlement they please. But where it professes to be a general settlement, then it must be effected on two principles — viz., that all the creditors are dealt with on terms of equality, and that all the creditors concur. Where all are to be bound, then until all are bound, none are bound. Again, where certain creditors have received preferences over others, or promises of such, to induce them to accede to the settlement, the result is simply INTRODUCTION. XIX this — that any creditor may destroy the settlement by a process of reduction, ou the ground of fraud ; and furthermore, the debtor or his cautioner, in such event, may at any time resist payment of ■ the preference where merely promised, and may sue for repayment of it where it has been actually paid, as all such preferences are absolutely illegal. No advantage is thus gained by any one. The mode by which the settlement is generally carried through is this : — The debtor, either with or without calling a meeting of his creditor.?, makes a written offer of a composition of so much per pound, payable within a specified period, with the security of a person named, and agrees to grant bills, along with the surety, for the amount of the composition due to each creditor. With this the debtor calls on the different creditors, and gets them to sign an acceptance of the offer. It is a useful precau- tion for the creditors to insert a condition that the transaction falls to the ground if not carried out and completed within a given period. Where the arrangement is carried through, but the debtor fails to pay the composition, then the original debt revives, unless in the case of an absolute discharge of the same having been granted at the time of the settlement. Where the debt so revives, the creditor proceeds against the debtor in the same way as if there had been no settlement at all. The advantage of this mode of winding up an insolvency to the creditors is, that they effect an immediate settlement of the matter at a great saving of expense ; while, so far as the debtor is concerned, it prevents the stoppage of his business, it does not dispossess him of his estates, and causes no exposure of his cir- cumstances. On the other hand, there is a diflaculty in carrying out such settlements. Any one creditor may stand out and defeat the whole plan. There are also objections to it. There may be pre- ferences to be reduced, or frauds to be exposed. Also, certain creditors may hold securities over the estate of the debtor, and, notwithstanding this, they may claim a composition upon the whole amount of their debt ; while, under a sequestration, they would be called on to put a value on the securities they hold, and deduct the value from the debt, and rank only for the balance. Where the debtor sees that he cannot carry on, or where he XX INTRODUCTION. does not wish to carry on, his business, but simply desires to wind up his affairs and distribute everything among the credi- tors, then he grants a conveyance of all his estates to a trustee for that purpose. This step is one merely for realisation and division of the estates among the creditors, and may be taken by the debtor either with or without a view to his discharge. It is to be remarked that, by the theory of the Scotch law, the estates of a man belong to his creditors from the period of his insol- vency ; and, consequently, he is only doing a duty which he owes to the creditors to transfer these estates to them simply for payment of their debts. He cannot, therefore, strictly speaking, clog the conveyance with conditions for a discharge of his debts, or for a suspension of diligence. He cannot even prescribe a course of management without their consent. In fact, unless the trust-deed is pure and simple in its terms, as a conveyance to a trustee for winding-up and division of the estates, it may be reduced and set aside by any one of the creditors. But if this is not done, then it is quite good even with such stipulations. The trust-deed may also be set aside by a creditor who had raised, and was pursuing, such legal diligence as would have had the effect of attaching the estate when completed. It may also be set aside if it was granted within sixty days previous to the insolvent being apprehended, or put in prison, or had his effects sold for debt, or otherwise rendered " notour " banlo'upt. The processes necessary to set aside the trust-deed on any of these grounds may be raised in the Court of Session or Sheriff Coiu-t. The deed, where allowed to stand, does not, in order to be valid, require the accession of all the creditors. If any creditor stands aloof he may arrest the insolvent and put him in prison, and he may also attach the estate, provided he does so before the trustee takes possession. But if the trustee get the estate into his power, then he realises and divides it among those who claim a ranking, and otherwise comply with the provisions of the trust. Where the insolvent or the creditors are dissatisfied with the management of the trust, they may get it superseded by a seques- tration. The steps necessary for a sequestration wUl be noticed hereafter. The granting of a trust-deed does not in any way tie up the INTRODUCTION. XXl hands of the creditors. They may put the debtor in prison, as before observed. The deed does not discharge the insolvent of his debts, even though it contain a stipulation to that effect, un- less the stipulation has been specially agreed to by the creditors. It is not enough to bind a creditor to such a stipulation that he has made a claim for a ranking, or even that he has received a dividend. He is quite safe to do either of those things vi^ithout committing himself to a discharge of his debtor. Where the trust-deed stands, the trustee proceeds to recover and administer the estate, and, after it is realised, to divide the proceeds among the creditors, in terms of the deed. Where there has been no composition-contract carried through, and where the insolvency is not to be vs^ound up by means of a trust, then the parties may resort to judicial proceedings for the enforcement of their rights. These proceedings take place in the ordinary law courts. They may consist of competing attachments by the creditors for possession of the insolvent's estate, or steps of procedure for the punishment of his person, or they may con- sist of processes raised by creditors against creditors to compel them to share their preferences with them, or of processes by the debtor for his own protection. But whatever be the nature or form of these common-law processes, the object of each party in having recourse to them is his own individual inte- rest, and none of them aim at any system of management or distribution of the insolvent's estate for the common benefit of the creditors. 1. Proceedings hy the Creditors against the Debtor. — The proceedings by the creditors against the debtor may be with the view to concussing him into giving payment or security by means of imprisonment. They may, however, intend the pro- ceedings against his person as the means of enabling them to apply to the Court for sequestration of his estates. This they cannot do until they render him " notour" bankrupt by some such step as the apprehension of his person or sale of some part of his estate. The debt of any one creditor must be £i>0, to enable him to apply for sequestration, as after-mentioned. The proceedings may be against the debtor's heritable estate. It may be the creditor's intention to attach it for himself, or if it has been attached within a year and day previously by any other creditor, it may be his object to come in with that creditor for a share in the estate. XXU INTRODUCTION. The proceedings may be against the debtor's moveable estate. The object of the creditor may be to attach it for himself, or, in the event of its having been attached by any other creditor within sixty days previously, then he may claim to participate in the proceeds of the estate with that creditor. 2. Proceedings ly one Creditor against another. — Where the creditors, instead of attacking their debtor, proceed to attack one another, it is with the view of setting aside any preferences which the debtor may have granted to any particular creditor, or which that creditor may have secured by legal attachment, and of enabling the creditors aggrieved to participate in the subject of the preference. This mode of equalising the rights of credi- tors is old-fashioned. It had its origin before sequestration-law had any existence ; and as it is expensive and dilatory, as well as unsatisfactory where adopted by individual creditors, it is seldom resorted to, except by the trustee under a sequestration for the benefit of all the creditors. The first of these processes which may be so raised by a trus- tee or by a single creditor, is one to bring back any property of the debtor which has been assigned to a creditor in security of his debt, while that other creditor was prosecuting legal mea- sures to attach it, and which measures, when carried out, would have had the effect of so attaching it. If the creditor who has been so defeated in his attempt to reach this property is the party who sues for restitution, then he retains it for himself. If the trustee in a sequestration is the party who sues, then he recovers it for the benefit of all the creditors. The second of these processes, which may be also raised by a trustee, or by a single creditor, is one to bring back any pro- perty of the debtor which may have been assigned to a creditor in security or satisfaction of his debt, within sixty days before his sequestration, or before he was apprehended or imprisoned, or before any of his effects were sold, or before he was otherwise rendered "notour" bankrupt. Where recovered, the property goes to the creditor who sues, or to the trustee in a sequestration where he is the party who sues. The only other of these processes is similar to the one last above-mentioned. It may also be raised by a single creditor where a trustee in a sequestration does not do so, and the object of it is to bring back from a creditor any subject or fund which he may have attached by legal proceedings for his debt within INTEODUOTTON. Xxiii the above-mentioned sixty days. The object in both cases is the same — to allow no creditor within sixty days prior to an act of bankruptcy to obtain any preference, either by the voluntary deed of the debtor or by the operation of the law. 3. Proceedings by Debtor for his own Protection. — The debtor, of course, cannot by any legitimate means protect his property from his creditors ; but he may, by certain processes, not only protect his person from imprisonment, but obtain a discharge of his debts. He may, in the first place, when put into prison for debt, apply for liberation unless the creditor furnishes him with aliment. This the creditor is not bound to do where the debtor is able to provide for himself ; and where the creditor has to do it, he is entitled to insist upon getting a conveyance to himself from the debtor of all his estates for behoof of his creditors. The debtor, in the next place, may apply, by means of a pro- cess of cessio bonorum, for liberation from prison, and for pro- tection against arrest of his person. The issue in this process is. Whether the debtor's conduct is such as to disentitle him to the privileges of liberation and protection ? If he has been guilty of fraud, or extravagance, or concealment of funds, his petition is refused. If granted, his estates are assigned over to a trustee for distribution among the creditors. The decree in this process does not free the debtor of his liabilities. Lastly, The debtor may, by raising a process for bringing about a sequestration of bis estates, obtain not only liberation from prison and protection from arrest, but ultimately a dis- charge of his debts. To enable him to sue out a sequestration, he requires the concurrence of a creditor to the extent of ,£50, or two creditors whose united debts amount to ^£"70, or three or more creditors whose debts in all are not less than £\0Q. He applies to the Court of Session or Sheriff Court, and in practice has no difBculty in getting the sequestration awarded where the statutory forms are observed. He has also no practical difficulty in obtaining personal protection until the first meeting of his creditors under the sequestration, unless some creditor antici- pates his application, and goes forward to the Court and sets forth a prima facie case against his obtaining protection, in which event it will be refused. But in regard to liberation from prison he has more difficulty : notice of his application has to be given to the incarcerating creditor, and then a hearing takes XXIV INTRODUCTION. place in Court. As a rule, it is not then granted if the creditor appear and state grounds of opposition ; for the Court at this early stage of the proceedings wiU hardly venture to disturb the status quo of parties. It will be postponed till the first meet- ing of creditors, when it will be seen whether they vote him protection or not ; as if he does not get protection from ar- rest, it is plain that liberation from prison will be of no avail. Instead, however, of being merely postponed, the application for liberation will at once be refused, if a prima facie case is made out against liberation — e. rj., that the debtor has been guilty of fraud, or has kept no business-books although he was a trader. The debtor's object, however, in obtaining sequestration, may be defeated by any of the creditors applying for recall. This may be done within forty days after the sequestration has been awarded, upon cause being shown. It may also be recalled at any time within three months from its date, where a majority of the creditors reside in England or Ireland, and where, from the situation of the debtor's property, or other causes, his estates ought to be distributed according to the laws of either of these countries. When recalled, matters practically exist as if no sequestration had ever been awarded. Such is a summary of all the various modes of dealing with insolvencies and bankruptcies in Scotland, with the exception of sequestration. In comparing the above judicial with the extra- judicial modes, a preference falls to be given to the latter in every way. Where a private composition-contract is carried through, or even where a trust-deed is executed, the creditors have some prospect of money ; but where there is merely a race between creditors to attach the debtor's estate first, or, perhaps, a struggle who are to keep it or share in it when it is secured by some one, and all these points are to be settled in separate lawsuits in the ordinary law-courts, it is obvious that the costs must, in the ordinary run of cases, swallow up most of the proceeds. The only process which professes to recover, realise, and dis- tribute the estates of bankrupts in Scotland upon equitable prin- ciples, is sequestration. As already mentioned, it may be raised by the creditors or the debtor. Where raised by the creditors, it may be at the instance of one creditor of ■£'50, or two creditors of .£70, or three or more creditors of dPlOO. When at the instance of the debtor, he must have the concurrence of such creditors. INTRODUCTION. XXV Whether brought cabout by the one or the other, the subsequent procedure in the sequestration is the same. The sequestration-system of Scotland has a regular constitu- tion. When sequestration has been awarded, and the bankrupt divested of his estates, they at once come under a threefold system of management and control. The first governing power is the trustee. He has the executive department. He alone has power to act ; but he has a council of creditors to advise with him. They are three in number, and are called commissioners. The trustee and commissioners are subject to the control of the creditors. The next governing body is that of the creditors. They form a deliberative assembly, and have corporate privileges. The majority rules the minority, but their proceedings are sub- ject to the control of the Court. The last power in the system is the Court. It may be the Court of Session or Sheriff Court, whichever is selected. The judicial power overrides the power of both trustee and creditors. The function of the Court is con- trol, and is only exercised on the complaint of some one, or in cases of appeal The decisions of these courts are subject to re- view in the usual way. In the ordiuary working of the sequestration-system there are eight different steps of procedure — viz. : 1. The Interim Preservation of the Estate. The trustee can- not be elected and ready to take the management of the estate sooner than a week after sequestration, and if there is competition for the office it may be a longer period. In the mean time any creditor may apply to the Court for the appointment of a judi- cial factor to take the management. An order may also be got to have the bankrupt's premises locked up, and his books and papers secured. 2. A Deed of Arrangement. — It may be the wish of the credi- tors to stop the progress of the sequestration without even the appointment of a trustee. In that case, a majority in number and four-fifths in value of the creditors who have produced their oaths and vouchers, and who are present or represented at the first meeting, may resolve that the estate- should be wound up under a deed of arrangement, and in that case no trustee need be elected. An application is then made to the Court to stay pro- cedure in the sequestration for a period not exceeding two months. Thereupon a deed of arrangement between debtor and creditors is prepared, and which may consist of a mere composition settle- XXVI INTRODUCTION. ment ; and if it is signed by four-fifths in number and value of all the creditors, and presented to the Court, it will be passed, and confirmed as binding upon every one, whether he has signed or not. The terms of the deed fix and determine the rights and habilities of aU parties. 3. Election of Trustee. — If a deed of arrangement is not to be carried through, then a trustee falls to be elected. The meeting of creditors to elect the trustee is advertised in the London and Edinburgh Gazettes, and takes place not earlier than six nor later than twelve days from the date of the ' Edinburgh Gazette ' notice. It takes place insome public hall. At this meeting those creditors vote who have produced their oaths and vouchers, and the majority in value decides the election. The creditors elect a fit person to be trustee, who may be a creditor or a stranger. He must not, however, be intimately related to the bankrupt, or connected with him in his business, and he must not have any interest adverse to the interest of the general credi- tors. He finds security for his intromissions and management, and the creditors fix both the amount of the security as well as the suiSciency of the person ofiered. The creditors also elect three commissioners to assist the trustee with their advice in the administration of the estate. They must be creditors, but they find no security ; and any one who is not qualified to be a trustee cannot be a commissioner. Where there is any difference of opinion among the creditors as to the election of the trustee or the commissioners, then it falls upon the Sheriff to decide such questions, which he is empowered to do without appeal. 4. Recovery and Realisation of Estate. — As soon as the trustee is elected, and receives his act and warrant from the Court, he proceeds to recover the estate. He makes up a title to the real estates ; he takes possession of the personal estates ; and he sues for outstanding debts. To enable him to do this, he applies to the Sheriff to name a day for the public examination of the bankrupt, and of all others who can give information in regard to the estate. The Sheriff presides at the examination, and the trustee, as well as any creditor, are entitled, with per- mission of the Sheriff, to put all lawful questions to the bank- rupt or such other persons, in regard to the affairs of the bankrupt, which they are bound to answer to the satisfaction of the Sheriff, under the penalty of commitment to prison. The trustee then prepares for the second meeting of the creditors. He makes up INTRODUCTION. XXV ii a report upon the state of the bankrupt's affairs, and giving an estimate of what the estate may produce. This report he lays before the meeting, so that the creditors may give him directions as to the recovery, management, and disposal of the estate. The trustee then acts with the advice of the commissioners, but sub- ject to the directions of the creditors, and in all cases under the higher control of the Court. 5. Composition-Contract and Discharge of the Bankrupt. — While the trustee's administration goes on, the sequestration may be brought to a close by the carrying through of a settlement by composition ; but it has to be remarked that the trustee does not cease to act until it is finally completed. The bankrupt may make the offer at the first meeting, and he must at the same time offer security for payment of the composition. It cannot, in any case, be carried at one meeting — it must be entertained for con- sideration at one meeting and carried at another. When made at the first meeting, it requires a majority in number and nine- tenths in value present or represented at the meeting to entertain it. If it is entertained by the majority, then the trustee publishes a notice to that effect in the ' Edinburgh Gazette,' and also sends circulars to the creditors setting forth that an offer has been so made and entertained, and that it will be finally disposed of at the second meeting of the creditors, and stating the hour, day, and place, of such meeting, and giving an abstract of the state of the affairs and of the valuation of the estate, to enable the cre- ditors to judge of such offer and security. And at the second meeting, a similar majority in number and nine-tenths in value of the creditors must carry the offer, else it is lost. Where the offer is not made tUl the second meeting, then in that case, and in all other cases, it may be entertained at the first, and carried at the second, meeting, by a majority in number and four-fifths in value of the creditors. And in order not to disturb the pro- gress of the sequestration and create unnecessary trouble and ex- pense, the Statute prohibits a bankrupt, in the case of an offer having been rejected or become ineffectual, from making a second offer, unless he first get the written assent of nine-tenths in num- ber and value of all the creditors to the offer. Where the offer is carried in any of these cases, the bankrupt and his surety lodge a bond for the composition, which is registered. The trustee re- ports the proceedings to the Court, and any creditor is entitled to go forward and object to the offer, and ask the Court to reject XXVlll INTfiODUCTION. it, which the Court is entitled to do where the offer has not been duly carried, or where it is not reasonable. If the Court find that the offer has been duly carried and is reasonable, then the bankrupt appears and makes a declaration or oath that he has surrendered everything to the creditors, and has been guUty of no improper conduct in carrying through the offer. Upon this, the Court awards him a discharge, which has the effect of freeing him of his debts, reinvesting him in his estates, and terminating the sequestration. 6. Division of the Estate. — If no composition settlement is carried through, then the realisation of the estate goes on with th,e view to distribution among the creditors. To entitle any creditor to participate in the division, he must lodge in the trustee's hands, within four months from the date of the seques- tration, an oath to his debt, with all the vouchers in his posses- sion necessary to prove it. If the vouchers are not in his pos- session, he states on his oath where they are ; and in that case, and also in the case of his claim not being dependent on vouchers, then a dividend is set apart for him until he recovers the vouchers, or otherwise establishes his debt, according to law. But to creditors out of the United Kingdom, the period of four months is extended to five months ; and where any creditor is too late for any dividend, he may claim for the next dividend, and in that case he is entitled to such a sum as will equalise his dividend with that of the other creditors. On the oaths of the creditors being so lodged, the trustee, in the capacity of a judge, examines them and pronounces a deliverance, admitting or re- jecting them as claims for a ranking, or perhaps requires farther evidence in support of them. He then gives notice of the result of his scrutiny to the different creditors, and if dissatisfied, any of them may appeal to the Court, in order to get the trustee's deliverance altered. If not appealed against, then it is final, so far as the first dividend is concerned. While this procedure is going on, the trustee is also engaged preparing his accounts'with the estate, which he lays before the commissioners to be audited. They also fix his remuneration, and decide whether a dividend is to be made or postponed. If there is to be a dividend declared then the trustee prepares a scheme of division, and gives notice to those creditors entered therein of the amount of their dividend. On the expiry of six months from the date of the sequestration, the dividends are paid to the creditors entitled to them, and in INTRODUCTION. Xxix the case of appeals, or of any claims being contingent, the divi- dends in these cases are meantime consigned in bank. The same process is gone through every three months — unless the periods of the various dividends are accelerated or postponed — until the estate is entirely divided. At the end of twelve months, however, a meeting of the creditors may resolve to expose the whole estate to auction, and so wind up the sequestration. 7. Discharge of the Bankrupt ivithout Com/position. — ^Where the bankrupt is not discharged by means of a composition-con- tract, but allows the estate to be realised and divided in the manner above-mentioned, then he is at liberty to petition the Court for his discharge. With that view he applies to the trustee for a certificate as to his conduct, and without this he cannot proceed. He thereupon gets the consent of his creditors to his petition ; and if the whole of them who have produced their claims in the sequestration concur in the application for a discharge, he may petition the Court at any time for it. If he postpone the application until the expiration of six months from the date of the sequestration, he requires the concurrence only of a majority in number and four-fifths in value of the creditors who have claimed. At the expiration of twelve months he re- quires the concurrence only of a majority in number and two- thirds in value ; at the expiration of eighteen months he requires only a majority in number and value ; and at the end of two years he requires no consent at all. He then presents a petition to the Court for a discharge, and an order is given for a notice to that effect being inserted m the ' Edinburgh Gazette,' and for a letter being sent to each creditor; and at the distance of twenty-one days, the Court, after hearing any objections by opposing creditors, grants or refuses the discharge, or defers the consideration of the petition, and may annex such conditions to the discharge as it thinks proper. 8. The Trustee's Discharge. — After a final division of the funds, the trustee calls a meeting of the creditors to declare their opinion as to his conduct as trustee. He thereupon applies to the Court for a discharge in the usual way. Such is the sketch of the working of a sequestration. A sum- mary will now be given of the rights and powers as well as the duties and liabilities of the bankrupt, the creditors, and the trustee ; and also the functions of the accountant in bankruptcy, and of the Court. XXX INTRODUCTION. 1. The Bankrupt— ThQ personal status of the bankrupt is not directly affected by the sequestration to any great extent. His person is at his own disposal, except that he is bound to be at the trustee's service in so far as to assist him in every way in the execution of his duties, and also to attend for exaniination, and grant all necessary deeds. The sequestration divests him of his property, but does not affect the other ties and relations of life — such as that of husband and wife, or parent and child ; nor such official positions which the bankrupt may hold — as judge, or clergyman, or sheriff-clerk ; nor a private office — such as trustee, factor, or director. He does not cease to be a peer, and it is doubtful if he could be deprived of a seat in the House of Com- mons. His electoral qualification, however, is lost. In regard to any of the industrial or commercial relations of life, all those founded on property are dissolved — such as landlord and tenant, or buyer and seller ; while those not so founded on property wiU continue — such as master and servant, or principal and agent. The bankrupt may, nevertheless, hold property — such as pro- perty which has been vested in him to the exclusion of the cre- ditors, or any ready cash in his own possession, although even these may be indirectly reached by the remedy of imprisonment, or the refusal of a discharge. He also takes up any subject which the trustee rejects, and he retains all necessary wearing apparel. He may, after sequestration, proceed to acquire property ; but the trustee may step in, and, by a process in the Court of Session, seize all such acquisitions and all successions that may open to him before his discharge. The salaries of aU public offices may be attached so far as not alimentary, and even Government pen- sions may now be reached. The trustee may also get an order on the officials of the post-office to deliver up the bankrupt's letters to him. The bankrupt, however, retains aU honours and dignities, and also the copyright of all unpublished literary compositions. He has also certain powers and privileges. He has, of course, no power over the estate generally, and no power to sue in any court regarding it, except in the case where the trustee has no right to the particular estate, or has abandoned it. In these cases the bankrupt may sue, but not until he find security for costs. Where, however, he is called as a defender in a suit, he does not require to find such security. He has the power to apply for or oppose sequestration, or petition for recall. He INTRODUCTION. ' XXXI may apply for liberation from prison, or for a discharge. He may carry a composition settlement, and call the trustee to account. He may appeal to the Court against the resolutions of the creditors, and against all deliverances of the trustee and commissioners, and may also complain against them by petition. The principal duties of the bankrupt are — to surrender his whole estate to the trustee — to give him every information and assistance in the recovery and management of it — to grant all deeds necessary to vest it in him — to prepare a state of his affairs, and deliver the same to the creditors at the first meeting — to undergo a public examination as to his affairs — and also to notify to the trustee his acquisition of or succession to any estates during the currency of the sequestration, so that the trustee may proceed to attach them. The bankrupt is subject to commitment to prison if he fail to give such information or assistance to the trustee, or to grant such deeds, or to answer all lawful questions at his examination, or deliver up aU his documents. He is also subject to a criminal prosecution if he is guilty of fraud ; and to incarceration as a debtor at all times where he has got no protection. His dis- charge win also be annulled if he has been guilty of granting or promising preferences to creditors to induce them to assent to it. 2. The Creditors. — A creditor has no voice in a sequestration until he has made an oath or affirmation to the verity of his debt, and produced the same, along with the necessary accounts and vouchers thereof, in the hands of the trustee or at a meeting of the creditors. TiU this is done he can neither vote nor draw a dividend. At meetings of creditors, the majority in value (except in special cases) settle and determine all questions regarding the estate, subject, of course, to appeal. The first meeting that takes place is fixed by the Court when awarding sequestration, and it is advertised both in the London and Edinburgh Gazettes. All subsequent meetings are advertised in the ' Edinburgh Gazette ' only, and no special notices of any meetings are sent to the cre- ditors except of the second meeting, and of any meeting for finally disposing of an offer of composition. The first meeting is always held in some public hall, the other meetings being usually held in the trustee's chambers. The creditors, as an aggregate, have the entire beneficial right XXXU INTRODUCTION. and interest in the estate, but only through their trustee. No single creditor has any right or power over it. Any creditor is entitled to inspect the sederunt-book and papers in the trustee's hands, unless in the case of any documents of a confidential nature. Any creditor may also object to the sequestration, or appeal against it, or apply for recall of it. He may also object to the election of trustee or commissioners, and to an offer of composi- tion, or to a deed of arrangement. He may also appeal against the resolutions of any meeting of creditors, or against the deli- verances of the trustee or commissioners. He is also entitled to vote at all meetings of the creditors, and that either personally or by proxy. He is also entitled to his dividends from the trus- tee. He has various remedies against the trustee. He may call the trustee to account for his management. No single creditor, however, can apply for his removal unless in the case of his not lodging the monies of the estate in bank, or of his failing to re- turn each year to the Clerk of Court a statement of the position of the estate. In all other cases it requires a majority of one- fourth in value of the creditors to apply to the Court for his removal on cause shown. Of course a majority in value of the creditors at any meeting may remove him without assigning any reason. But a single creditor has this remedy — he is entitled to complain to the Accountant in Bankruptcy that the trustee is not faithfully performing his duties, and duly observing all rules and regulations imposed on him by Statute or otherwise relative to the performance of those duties ; and the accountant is bound to inquire into the same, and he may report to the Court of Ses- sion, which has the power to censure the trustee, or remove him from office, or deal with him as the justice of the case may require. Where the creditors merely lodge their claims and exercise their statutory right of voting, they in general incur no respon- sibility. They are not liable, by so doing, either for the costs of the sequestration or the obligations of the trustee. It must be kept in view, however, that in causing the trustee to act in any matter, they will incur personal liability if they have instructed him to go beyond the limits of the Statute in any way. 3. The Trustee.— The. trustee's right extends to all the bank- rupt's property. He takes it subject generally to such qualifica- tions and burdens as existed in the right held by the bankrupt. In -the case of ordinary moveable rights, the trustee requires no title except his act and warrant ; but in the case of registered INTEODUCTION. XXXiii , property— such as lands, ships, patents, &c. — he must, in order to cutout the claims of third parties who may have incompleted rights to such property, have his title formally made up in terras of law. The right to the estate being vested in the trustee, he has full power to take possession of it, and to recover, manage, and realise it. To enable him to recover the estate he may call on the bank- rupt to grant all manner of assistance and information ; and he can have the bankrupt and any others who can give information on the subject examined upon oath in open Court. In the capa- city of manager, the trustee has the power to bind the estate. He has also the power to sell it, but he cannot himself become the purchaser. In distributing the estate, he sits, in the first instance, as judge upon the claims of the creditors, and has all the powers necessary for that purpose. But in that and in every other capacity he is subject to the control of the Court ; and in all matters of management he acts with the advice of the com- missioners, and subject to the instructions of the creditors. He has also a right of appeal in all cases — from the deliverances of commissioners, the resolutions of creditors, and the decisions of the Court. The geueral duties of the trustee are — to recover and take pos- session of the bankrupt's estate — to manage and realise the same — and, when converted into cash, to divide the proceeds among the creditors according to their several rights and interests. He has also a great many minor duties : e. g., he must regularly lodge the moneys of the estate in bank ; he must keep a sederunt- book, patent to the creditors, in which the accounts and proceed- ings of the estate are recorded ; he prepares a report upon the state of the bankruptcy to the second meeting of creditors ; he • keeps regular accounts of the affairs of the estate, and transmits a copy to the Accountant in Bankruptcy, &c. &c. The trustee is bound to perform all the duties imposed on him by the Statute, and incurs the following liabilities for non- performance— viz. : 1. Censure by the Court; 2. Eemoval from oflSce ; 3. Pecuniary penalties ; 4. An action for implement ; and, 5. Damages to the party injured. He may also incur per- sonal Kabilities if he enter into a lawsuit or a contract, or com- mit a wrong against any one. In such cases he may have re- course against the estate where he has acted within the limits of the Statute ; but if he has gone beyond them, he has only recourse on any creditor who may have specially authorised him to do so. c XXxiv INTRODUCTION. The Court of Session or Sheriff may, at the suit of any credi- tor, remove the trustee, and find him entitled to no remuneration where he has improperly retained the funds of the estate in his own hands. The Court of Session or Sheriff may also entertain a petition against the trustee, at the instance of any one in- terested, to compel him to account for his intromissions and management; but it is the Court of Session alone which can remove or censure the trustee for general misconduct. The Ac- countant in Bankruptcy, at his o-mi instance, or at the instigation of any creditor, may apply to the Court of Session and have the trustee removed from office, or have him censured. Also, one- fourth of the creditors in value may apply to the Court of Session for his removal upon cause shown. Where any claim is to be en- forced against the trustee, it will fall to be done in the ordinary way. 4. The A ccountant in Bankruptcy.- — The office of Accountant is one of considerable importance to the Scotch system of bank- ruptcy. He keeps a record of the proceedings in every seques- tration in Scotland ; he superintends the conduct of the trustee and commissioners ; he receives the complaints of creditors against these officials ; and he reports to the Court of Session with a view to censure, deprivation of office, or such other punish- ment as the Court may deem proper. 5. The Court. — The Court of Session within Scotland, and the Sheriffs within counties, have concurrent jurisdiction in pro- cesses of sequestration. Their jurisdiction generally is co-equal, except that iu processes for recall of sequestration, and for re- moval of trustee on default, the Court of Session has exclusive jurisdiction. In the Court of Session the Inner House sits on sequestration cases during session ; the Lord Ordinary on the Bills during vacation. In the Sheriff Court, either the Sheriff or his Substitute may be the judge, but there is no appeal from the one to the other. The functions of the judges and forms of pro- cedure are similar in both Court of Session and Sheriff Court. These Courts exercise control over the proceedings in sequestra- tions, but they only act in cases of appeal from the deliverances of commissioners or trustees, or from the resolutions of creditors, and, in cases of written complaint, against any of the parties in the bankruptcy — e. g., the judicial factor, commissioners, trustee, creditors, or bankrupt. As a rule, any party aggrieved may, after appealing as above to the Sheriff, carry the appeal to the Court of Session, and afterwards to the House of Lords. ERRATA. On page 6, line 32, /or "7th" read "6th.'' 58, . ■ 7, "36" .. . "31." 71, . . 16, "16th" . . "6th." 79, . . 16, afterword "protection" read 82, . ■ 17, for "note. I" read "note m.' 96, . .. 17, delete "Act 1857." 142, . .. 17, add "vide also Act 1860, s. 3. 177, . .. 37, for "7th" read "6th." 185, . .. 22, " 1843" , . " 1833." 186, . .. 2, "1583" .. . "1853." 187, . .. 9, "1791" .. . " 1794." 235, . .. 3, "9th" .. "17th." 236, . .. 42, "1832" .. " 1852." 247, .. 16, "11th" .. . "27th." 266, . .. 42, "1827" .. . "1837." 304, . .. 36, "Jan." .. " July." 305, . .. 8, "Silling" read "PUUng." ' or liberation.'' PART I. TREATISE ON INSOLVENCY AND BANKEUPTCY MANUAL LAW or INSOLVENCY AND BANKEUPTCY. PART I. TEEATISE ON INSOLVENCY AND BANKRUPTCY. CHAPTER I. INSOLVENCY. Sect. 1. — Definitions. (1.) Of Insolvency in a Question with Debtor. 1. Where a man is unable to fulfil the obligations which he Defini- has undertaken, and according to his undertaking, he is insol- '^'^^ vent. (2 B. C. 162.) 2. It is of no consequence what the insolvency arises from. Cause of whether from an absolute deficiency, or from his estates being """ ™''°''' simply unrealisable, or from his affairs having got into a state of complication or confusion ; nor is it of any consequence that his estates will ultimately be solvent when markets rise or fall, or when particular works or contracts are finished. (Ibid. ) 3. The inability of the debtor to fulfil his engagements may Overt acts. be demonstrated by overt acts, as by, 1. The dishonour of a bill past due, or the refusal or failure to pay any admitted or con- stituted debt ; 2. A suspension of payments generally ; 3. The A 2 TREATISE ON B...«. calling of a meeting of Ms creditors ; or, 4. The execution of a TioNs. trust-deed or conveyance omnium honorum. {I a. ^- -lo^ anu 163.) , Effect. 4. In a question with the debtor, any one of these acts makes ''^"'- him insolvent to the effect of justifying stoppage m transitu {vide infra), and likewise, with other requisites (Act 1696, c. 5 ; Act 1856, s. 7), of constituting notour bankruptcy. (2 B. C. 168.) (2.) Of Insolvency in a Question between Creditors. When in- 5. The estates of a debtor are insolvent, which, when fairly adequate to estimated, are inadequate to meet his liabilities. (A v. B, 17th meet ha- ' „ „ , biiities. Nov. 1837 ; F. C.) 6. A debtor thus insolvent cannot make gratuitous aliena- infra.' tion of Ms property, nor grant preferences to his creditors. {Vide infra.) (3.) Of Insolvency in a Judicial Sale and Ranking. Of insoi- 7- -^ debtor's heritable estates are insolvent where the interest venoy in ju- gf the debts and the o'ther annual burdens thereon exceed the yearly income of the property. (Judicial Procedure (Scotland) Act 1856, cap. 91, s. 3.) Effects 8. Insolvency in this sense justifies the raising a process of infra. judicial salc. ( Vide infra) Sect. 2. — Effects of Insolvency. (1.) Does not per se Incapacitate from Transacting. Does not 9. Insolvency does not incapacitate any one from purchasing iNCAPA- goods, or transacting any kind of business, nor from taking de- ciTATB. livery of goods. (1 B. C. 244 ; vide Richmond, 26th Jan. 1854.) Butresoiu- 10. But he cannot do so after taking a final resolution to don does.'"'" abandon everything to his creditors (1 B. C. 245) ; and accord- ingly, in one case where he had suspended payments and called a meeting of his creditors {Schuurmans, 9th July 1828), and in another where he had granted a mandate for sequestration {Watt, 20th Peb. 1846), the transactions were held fraudulent, and the creditors were obliged to restore the goods to the sellers. TOUS ALIE- NATIONS AT INSOLVENCY. 3 11. On the occurrence of insolvency, the seller may retain the does not goods or stop them in transitu. (1 B. C. 205 and 212 ; Stoppel, ^^J'J^. 15th Nov. 1850.) oiTATE. Stoppage in (2.) Insolvent cannot make Cfratuitous Alienations hy Common Law. 12. The question is one simply of fraud (2 B. 0. 197)— the Gratui- issue sent to the jury in such cases being, whether the ahena- tion under challenge was granted by the debtor fraudulently, to common disappoint the legal rights of his creditors. (M'Coivan, 6th July '"'— - 1852 ; Wilson, 20th Dec. 1853 ; Bohie, 22d Nov. 1854.) The f^aud!'"""' basis of the fraud is, that after insolvency the debtor's funds are Basis of the no longer his own, but belong to his creditors. (2 B. C. 1 82 ; ^'■'■"'^■ 1 B. C. 8.) 13. It will be sufficient evidence of the fraud that the debtor Evidence of knew that his circumstances were, or believed that they might ^'^^^' be, in a state of insolvency, and that in consequence of this knowledge or belief he granted the alienation under challenge. (M'Cowan, 10th March 1853 ; M'Ewan, 30th May 1828.) 14. Praud on the part of the receiver of the alienation, or col- Fraud on lusion between him and the debtor, is not necessary ; it is not cdver nol; necessary that he should even know of it. {M'Cowan, 6th July i^c^ssaj-y. 1852; 10th March 1853.) 15. Insolvency of the debtor at the date of the challenge, as insolvency well as at the date of the alienation, is necessary to the challenge "^'^^'^^"'y' (2 B. C. 197; vide M'Cowan, Wilson, and JDobie, supra). But this may not be necessary where the alienation is to others for behoof of the debtor himself directly or indirectly {Roseherry, 1st July 1823). 16. Non-onerosity is also necessary (2 B. C. 197). It is of no Non-onero- consequence, where the alienation is by deed, that the deed bears °''^' the consideration to have been onerous (ibid.) 17. The alienation must have been prejudicial to the insol- Challenge vent's creditors, but it is not necessary that they be prior creditors. cJeditors"""^ Posterior creditors are sufficiently prejudiced, and therefore inter- ested, and entitled to maintain a challenge. {Edmohd, 1st June 1853 ; E. 1. 1. 4; Street, 12th Feb. 1672 ; D. 4911.) 18. A trustee on a sequestrated estate challenges for behoof By trustee, of the whole creditors. (Act 1856, s. 11.) 1 9. The challenge is competent by way of action or exception. Action or and in the Sheriff Court. (Act 1856, s. 10 ; and Act 1857, s. 9.) '''°'P"™- TKEATISE ON Does not 20. As to nature of deeds reducible, vide Keductions under iIcaS.- Stat. 1621 and 1696, infra. CITATE. Gbatui- TOnS ALIE- KATIONS UNDER Act 1621. Fraud not necessary. What are alienations. Grounds of challenge. 1, A credi- tor. 2. Prior to deed. 3. Receiver conjunct or confident. 4. Debtor now insol- vent. 5. Also at dateofdeed. 6. Aliena- tion gratui- tous. Proof by creditor. Presump- tions. Mora. (3.) Insolvent cannot make Oratuitous Alienations hy Act 1621, G. 18, Part I. 21. The design of the first branch of this Statute is to dispense with a proof of fraud in the reductions by creditors of gratuitous alienations by their debtors to third parties, and hence no proof of fraud either on the part of the grantor or of the receiver of the deed is necessary. (2 B. 0. 183.) 22. All alienations are reducible under this Statute that con- fer upon the grantee a right of property or a right of debt or immunity from a demand. As to what are alienations, vide Act 1621, note c, postea. 23. The pursuer of an action under this Statute must make the following averments — viz. : 1 . That he is a creditor of the party whose deed is challenged, or a trustee for creditors of that party. As to nature of debt, vide Act 1621, note a, postea. 2. That his debt, or if a trustee, the debts of any of the credi- tors whom he represents, originated prior to the alienation under challenge. As to prior debts, vide Act 1621, note a, postea. 3. That the receiver of the deed is conjunct or confident with the debtor. As to conjunct and confident persons, vide Act 1621, note e, postea. 4. That the debtor is insolvent (Act 1621, note d, postea). 5. That the debtor was insolvent at the date of the alienation. As to what insolvency is, vide Act 1621, note g, postea. 6. That the alienation was granted without true, just, or necessary causes. As to what are onerous or necessary causes, vide Act 1621, note/ postea. 24. The challenging creditor must establish all these aver- ments by proof, with the exception of the last two— viz., that of insolvency at the date of the deed, and that of non-onerosity. These points are presumed, and it falls on the receiver to dis- prove them, by showing that the debtor was solvent at the time the alienation was granted ; or that it was gi-anted for an oner- ous or a necessary cause (Act 1 621, note g, postea). After a delay of forty years, however, the onus of proving these points is not thrown on the receiver (ibid, note m). And even where the delay in raising the challenge is conisiderable, the creditor or trustee cannot insist on going narrowly into the inquiry, but it INSOLVENCY. 5 must be conducted on a broad and fair and rather favourable Gratui- view for the debtor (Act 1621, note m). ''°''^ ^^™- ^ ' / NATIONS 2,0. ihere are two defences to the action— 1. That the de- "nder fender was solvent at the date of the alienation ; and, 2. That '^— it was granted for true, just, or necessary causes. Any one of i'^f™<^<=«- these defences is an answer to the action. (Ibid., notes g, f, postea.) 20. The form of action is that of reduction simply when Form of ac- raised by a single creditor ; but where it is at the instance of a trustee, there may be combined with it an action of restitution, or covint and reckoning and payment, or the like. (Ibid., note h, postea.) 27. The challenge may be made by way of action or exception, ciiaiienge (Ibid., note i, postea.) tion."'^' 28. It may be made in the Court of Session or Sheriff Court. lu what (Ibid., note h, postea.) °''™'' 29. The direct effect of the reduction, so far as the challenging Effect of creditor is concerned, is to open the subject or fund contained in credUor." '° the deed of alienation to his diligence ; or where a trustee is pursuer, then he demands it, or insists on payment ; and where it is heritable, he makes up a title. (Ibid., note j, postea.) 30. The effect of the reduction, so far as the interposed person Tointerpos- is concerned, is, that he falls to give up the fund or subject ^ P^''^°°- alienated to him either to the diligence of the challenging cre- ditor or to the trustee, if a trustee is pursuer (Ibid, note j, postea) ; or he gives it up so far as it is found to be gratuitous (Ibid., note/, postea) ; and where he has sold it for money, or in satisfaction of a debt, he falls to restore the price to the credi- tors as above (Ibid., postea). 31. The effect of the reduction, so far as a third party acquir- To third ing the subject or fund is concerned, is, that if he is a partaker quiring. in the fraud, or receives the subject of alienation gratuitously from the interposed person, he must restore it ; but where he is not partaker in the fraud, and did not purchase the subject, nor receive it in satisfaction of a debt, then he is free from challenge. If, however, he has not paid the price, he gives it up to the credi- tors. (2 B. C. 195 ; Act 1621, postea.) As to what is partici- pation in the fraud, vide Act 1621, note h TREATISE ON Pbeper- EKOES AT COMMON LAW. Fraud. Basis of fraud. Evidence of the fraud. Fraud on pai't of re- ceiver not necessary. Insolvency. Implement of prior ob- ligation. Posterior creditors. Trustee. Challenge by action or exception. Deeds re- ducible. (4.) Insolvent cannot grant Preferences hy Common Law. 32. The question is one simply of fraud (2 B. C. 197) — the issue sent to the jury in such cases being, whether the ahenation under challenge was granted by the debtor fraudulently, to disap- point the legal rights of his creditors (iPCowan, 6th July 1852 ; Wilson, 20th Dec. ] 853 ; Dohie, 22d Nov. 1854). The basis of the fraud is, that after insolvency a debtor's property belongs to his creditors according to their several rights and preferences (1 B. C. 9 ; Act 1856, s. 121). 33. It will be sufficient evidence of the fraud that the debtor knew that his circumstances were, or believed that they might be, in a state of insolvency, and that, in consequence of this knowledge or belief, he granted the alienation under challenge. {M'Cowan, 10th March 1853 ; M'Ewan, 30th May 1828.) 34. Fraud on the part of the receiver of the alienation, or col- lusion between him and the debtor, is not necessary. It is not necessary that he should even know of it. (Ar Cowan, 6th July 1852, 10th March 1853.) 35. Insolvency of the debtor at the date of the challenge, as well as at the date of the alienation, is necessary to the challenge. (2 B. C. 243.) 36. The deed is not reducible if executed in implement of a prior obligation granted at the time of entering into a legal transaction (Home, 12th Feb. 1847) ; but a mere promise to give security for a debt in answer to demands for payment will not save the deed from reduction {M'Cowan, 10th March 1853). 37. The challenge may be made by a prior creditor, but it may be questioned whether a posterior creditor has the right to do so, as it is difiicult to see what prejudice posterior creditors sustain by a debtor granting a preference to one prior creditor over another. ( Vide M'Cowan, 7th July 1 852 ; also E. 4. 1. 44.) 38. A trustee on a sequestrated estate challenges for behoof of the whole creditors. (Act 1856, s. 11.) 39. The challenge is competent by way of action or exception, and in the Sheriff Court. (Act 1856, s. 10; and Act 1857, s. 9.) 40. As to the nature of deeds reducible, vide Eeductions under Stat. 1621, siopra, and 1696, infra. INSOLVENCY. (5.) Insolvent cannot grant Preferences by Act 1621, C. 18, Part II. 41. The second brancli of the Act 1621, c. 18, is merely an Pbbitke- extension of the principle of litigiosity, and the pursuer of a ™r''a™" challenge under it has to allege and establish the following ^^^i- grounds of action — viz.: 1. That he is a creditor of the party Principle of whose deed is challenged (Act 1621, ^ostea). 2. That the |^"^i^1^^'^^-j defender is the receiver of an alienation from the debtor to the action. pursuer's prejudice, it being of no consequence whether the de- Creditor. fender is a stranger or a creditor, or whether the alienation is ^n. ^"' parties viva voce then and at such other times as he may think necessary, and makes a note of any objections and answers that may be stated on the part of the creditors, and either grants de- cree or refuses the same in hoc statu, or grants it, subject to a declaration that it shall not be extractable or available as a pro- tection to the debtor for such time as shall appear proper, or makes such other orders as may be necessary for the due admin- istration of justice ; provided that, where the Sheriff shall grant decree under such limitation, or refuse decree in hoc statu, he must state the grounds of his decision, and the most summary despatch consistent with the forms of Court is to be given, and the Sheriff's note of the objections is to be signed by him, and thereupon to form part of the process. (Cessio Act, s. 6 ; Act of Sederunt 1839, s. 15 and 16, postea.) 168. If such decree be pronounced by the Sheriff-Substitute, Eeciaimmg it is competent to any person aggrieved to present a reclaiming ^^ ' '™' petition against the same, provided the petition be lodged within six days from the date of the judgment ; and the Sheriff-Sub- stitute may allow answers thereto, and disposes thereof as shall be just ; and in case the complainer shall intimate his desire in the petition, that if the Sheriff-Substitute be disposed to refuse the petition it may be laid before the Sheriff, it falls to be trans- 38 TKEATISE ON Peoce- DURE m Sheriff Court. Court of Session. mitted to the Sheriff, who does therein as shall be just. (Oessio Act, s. 7 ; Act of Sederunt 1839, s. 17.) 169. It shall be lawful, either after such reclaiming petition Re^ by has been disposed of, or without presenting such petition, for any person aggrieved to bring the judgments under the review of the Court of Session, by lodging with any one of the Clerks of that division of the Court under whose review he wishes to bring the cause, a reclaiming note, having such division marked thereon, reciting the judgment or judgments complained of : Provided always, that the said note be lodged within ten days from the date of the judgment or the last of the judgments complained of, unless the judgment be pronounced by the Sheriff of Orkney, in which case the reclaiming note must be lodged within twenty days from the date of the judgment or the last of the judgments as aforesaid ; and a copy of the said note must in all cases be delivered within the said respective periods to the respondent or his known agent, which is held to be due service, a copy tliereof, certified by the said Clerk of Session, is a sufficient warrant to the Sheriff Clerk to transmit to the said Clerk the proceedings in the process (Cessio Act, s. 8). The delivery of the copy note to the respondent or his agent must be attested by the execution of a macer, messenger-at-arms, or Sheriff-officer, and one wit- ness, and the Clerks of Court are prohibited from receiving the reclaiming note unless accompanied by such execution (Act of Sederunt 1838, s. 13, postea). As to boxing and enrolling of note, vide ibid., s. 13 and 14<. 170. If the Court of Session be sitting, the reclaiming note is enrolled as soon as conveniently can be, and the Court pro- nounces judgment, or remits the cause to the Sheriff with such instructions as to them shall seem fit, or to the Lord Ordinary on the Bills during vacation or during the Christmas recess. (Cessio Act, s. 9.) As to mode of boxing and enrolling, mde Act of Sederunt 1838, s. 13, postea. 171. If the Court of Session be not sitting when the reclaiming note has been lodged, the cause must, as soon thereafter as may be convenient, be transmitted to the Bill Chamber Clerk, and en- rolled in a roU to be kept for that purpose in the Bill Chamber ; and the Lord Ordinary on the Bills, on a day to be specified in that roll, hears parties viva voce, and pronounces judgment ; and for the purposes of the Act, he possesses, during the vacation and the Christmas recess, the powers competent to the Inner House Court to dispose of case if sit- ting. If Court not sitting. Lord Ordi- nary to do so. CESSIOS. 39 during session, but his judgment is subject to review ; and if phooe- the proceedings have not been brought to a termination before shehot the Lord Ordinary on the Bills at the commencement of the ^ouet. ensuing session, the cause must be re-transmitted and enrolled before the Inner House, which may give judgment therein as if it had been enrolled, or had continued without interruption be- fore the Inner House. (Cessio Act, s. 10.) As- to mode of enrolment in these cases, vide Act of Sederunt 1838, s. 14. 172. It is competent for any person aggrieved by any judg- Eeview of ment pronounced by the Lord Ordinary on the Bills to bring the rary'sjudg- same under the review of the Inner House by a reclaiming note, "^"*' provided the note be lodged within ten days after the date of the judgment, and duly intimated to the agent of the respondent ; and the Inner House proceeds with all despatch to hear parties viva voce thereon, and may give judgment as aforesaid, or issue such other orders as may be necessary for the purposes of justice. (Cessio Act, s. ll.) 1 73. It is competent to appeal to the House of Lords against Appeal to the judgment of the Inner House, either granting or refusing Lo°"ds! ° decree of cessio : Provided always, that the petition of appeal be lodged within ten days from the date of the judgment, during the sitting of Parliament, if it shall continue to sit for so many days, and if Parliament be not sitting, or, if sitting, there be not so many days, then the petition of appeal must be presented within six days after the next session of Parliament shall have met. (Ibid., s. 19.) 174. If the decree of cessio be refused in hoc statu by the Renewed Sheriff, the debtor may, at any time thereafter, without the ='pp''<^''«™- necessity of presenting any new petition, apply to have decree of cessio pronounced in his favour ; and if the decree has, on review by the Court of Session, been refused in hoc statu, the debtor may either apply to that Court for decree or present a new petition to the Sheriff, in which latter case proceedings take place as if no former petition had been presented (Ibid., s. 17). And the debtor may make the renewed application by a minute, without argument, annexed to his original petition ; and he gives notice thereof to all his creditors, by letters addressed to each through the post-office, paying the postage thereof, and the case cannot be taken up till twenty days after the despatch of all the said letters, the fact of the despatch being established by certifi- cates satisfactory to the Sheriff (Act of Sederunt 1839, s. 22). 40 TKEATISB ON Peooe- 175. The debtor, in the event of cessio being awarded, makes s^BiS an oath or afErmation to the effect that he has given a true and CouET. correct state of his affairs ; that he has no estates other than Oath. those specified in the said state ; that he has not granted any conveyances thereof, except the one to the creditors, where one is granted ; and that he has not parted with any of his goods nor cancelled any documents. (Cessio Act, s. 18.) Vide Act of Sederunt 1839, s. 19, for form of oath or affirmation. Dyvour's 176. It is not lawful to ordain the debtor to wear the dyvour's habit. 11. z,^ . A t r, \ habit. (Uessio Act, s. 18.) Court of 1 77. Agents of the Court of Session may practise in the She- agents, riff Courts in cessio, but are not entitled to any other fees than are exigible by other agents before such Courts. (Ibid., s. 21.) Sistmgpro- 173. When it shall appear that any of the provisions of the statutecom- Statute, or of this Act of Sederunt 1839, postea, have been phed with. Qj^j4|;g^^ Qp jjQ^ ^^jy complied with by the pursuer of any pro- cess of cessio, the process may be sisted till the regulations have been duly complied with in all points, if it shall appear to the Sheriff, from the nature of the omission, that this can be still done consistently with justice,and with the due execution of the Statute. (Act of Sederunt 1839, s. 23.) Sect. 7. — Grounds of Objection to the Cessio. Objeo- i79_ Cessio is invariably refused Aoc sia^tt where the debtor is TIONS TO CESSIO. guUty of concealment of funds, or fails to disclose the state of his affairs. ( Vide Shaw's ' Digest,' voce Cessio.) 180. It wUl also be refused or granted superseding extract for a given time where the debtor is guilty of falsehood, fraud, ex- travagance, recklessness, or general misconduct. (Ibid.) 181. In the case of a debtor in the aliment of an illegitimate child, he finds caution for future aliment before cessio is granted. {Ghisholm, 2d Dec. 1856.) 182. The trustee on the estate of a sequestrated bankrupt, in the case of the latter applying for cessio, grants a certificate as to the bankrupt's conduct under his sequestration ; but this cer- tificate is not final and decisive. (Act of Sederunt 1838, s. 9 ; Act of Sederunt 1839, s. 10, postea.) SEQUESTRATIONS. 41 CHAPTER VI. SEQUESTEATIONS. Sect. 1. — Of the Bankrupt. (1.) Requisites of Sequestration. 183. The party, whetlier an individual, a company, or an alien, Eequi- must be a debtor, and it is no matter that he is under any legal |e™ues5 incapacity or unconnected with trade. (Act 1856, s. 13, note a, tration. postea.) Must be a 184. In the case of a living debtor, v^here he is petitioner, he ^ ^' . . , . , 11. 1 Concurrence requires the concurrence oi a creditor whose debt is not less of creditors. than £50, or of two creditors whose debts together are not less than dp 70, or three or more creditors whose debts together are not less than ^100, provided such debts are not contingent. (Act 1856, s. 14, and notes, postea.) As to character in which creditor acts, vide s. 1 3, note c. 185. In the case of a living debtor, where a creditor or credi- Notour tors are the petitioners, then, 1. Their debt or debts must be ''^°i^"P*'^y- of the amount and nature above specified (Act 1856, s. 14). 2. The debtor must be notour bankrupt, and have within a year before the date of the presentation of the petition resided or had a dwelling-house or place of business in Scotland ; or otherwise, in the case of a company being notour bankrupt, it must have within such time carried on business in Scotland, and any partner have so resided or had a dwelling-house, or the company must have had a place of business in Scotland (ibid., s. 13, and notes, posted). 3. The notour bankruptcy must have taken Period of place within four months prior to the presentation of the peti- ban°kraptcy. tion (ibid., s. 15, and notes). 42 TREATISE ON EEQur- SITES OF SEQUES- TRATION. Petition by mandatory. Deceased debtor. Jurisdic- tion, Produc- tions. Court. Requisites of petition. Procedure if debtor concur. 186. In the case of a deceased debtor, the petitioner may be a mandatory to whom the debtor had granted a mandate to apply for sequestration. (Act 1856, s. 13.) 187. In the case of a deceased debtor, where a creditor or creditors are the petitioners, their debt must be of the amount and nature above specified (ibid., s. 14, and notes) ; but the sequestration cannot be awarded untU the expiration of six months from the debtor's death, unless he was at the time of his death notour bankrupt, or unless his successors concur iu the petition, or renounce the succession. (Ibid., s. 15, and notes.) 188. The debtor must be subject to the jurisdiction of the supreme courts of Scotland at the date of the petition if living, or at the date of death if deceased. (Ibid., s. 13, and notes.) As to nature of this jurisdiction, vide note c. 189. The petitioning or concurring creditor must produce with the petition an oath or affirmation with reference to the debt and the accounts, and vouchers necessary to prove the debt. (Ibid., s. 21 and 49, and notes ; vide Qualifications of creditors, postea) 190. The application for sequestration falls to be made to the Court of Session, or the Sheriff of the county in which the debtor (if living) for the year preceding the date of the petition, or the date of death (if deceased), has resided or carried on business. (Ibid., s. 18, and notes, postea.) 191. The petition in the Court of Session must be made to the Lord Ordinary on the BUls, and be signed by the petitioner or his counsel or agent, and the division of the Court to which the sequestration is appropriated must be marked thereon, and in the Sheriff Court must be signed by the petitioner or his agent ; and in either Court, in petitions at the instance of the debtor, but not signed by him, there falls to be produced there- with a mandate authorising the same, signed by him, or, in the case of a company, by a party entitled to act for the com- pany. (Ibid., s. 21, and notes.) As to parties entitled to act for company, vide s. 21, note e. 192. When the same is presented by or with concurrence of the debtor, or, if dead, of his successor, or if the successor renounce the succession, the Court forthwith awards sequestration of the estates which then belong, or shall thereafter belong, to the debtor before the date of the discharge, and declares the estates to belong to the creditors for the purposes of the Act, and, if the SEQUESTRATIONS. 43 debtor is dead, ordains any successor who has made up a title to, eequi- ^ or is in possession of, any part of his property, to convey the |™ce°!' same to the trustee to be appointed. (Act 1856, s. 29, and teation. notes, postea.) 193. Where the petition is without the debtor's consent, or, if Procedure if the debtor is dead, without the consent of the successor, the debtors Court, 1. Orders citation of the debtor or liis successor, to appear '=™'=""'«»<^^- on an inducise of not less than six nor more than fourteen days, if within Scotland, by delivering to him personally, or by leaving at his dwelling-house or place of business, or the dwelling-house or place of business last occupied by him, a copy of the petition and warrant; andif furth of Scotland, on an inducise of twenty-one days, and by leaving such copy at the Office of Edictal Citations, at the dwelling-house or place of business last occupied by him ; and, if the debtor be dead, also at the dwelling-house or place of business occupied by him at his death, to show cause why se- questration should not be awarded. 2. If desired, grants dili- gence to recover evidence of the notour bankruptcy, or other facts necessary to be established ; and, 3. Directs intimation of the warrant and diet of appearance to be made in the ' Edinburgh Gazette.' (Ibid., s. 26 and 28, and notes, postea.) As to edictal citation, vide s. 28, note a. As to diet of appearance, vide . s. 28, note c. 194. When the debtor is a company, it is sufficient citation Case of a that a copy be left at the place where the business of the com- <^°™P™y- pany is or was last carried on, provided a partner or a clerk or a servant of the company be there ; and failing thereof, at the dwell- ing-house of any of the acting partners, and if the house of such partner cannot be found, by leaving a copy at the Office of Edictal Citations. (Ibid., s. 27, and notes.) 195. On expiry of the inducise, if the debtor, or, if dead, his Diet of ap- successor, do not appear at the diet, either in person or by his P^="™'<^- counsel or agent, and show cause why the sequestration cannot be competently awarded, or if the debtor so appearing do not instantly pay the debt or debts in respect of which he was made bankrupt, or produce written evidence of the same being paid or satisfied, and also pay or satisfy, or produce written evidence of the payment or satisfaction of the debt or debts due to the peti- tioner, or to any other creditor appearing and concurring in the petition, the Court, on production of evidence of the citation and of the foresaid requisites for sequestration, awards sequestration 44 TREATISE ON Requi- ut supra. (Act 1856, s. 30, aud notes.) As to objections to sEOTEs^ sequestration, ibid., note e. As to consignation of debts, ibid., THATioN. note g. As to costs of application, ibid., note j. 196. The date of the first deliverance on any petition for se- questration is held to be the date of the sequestration, although the sequestration be not actually awarded until a later date. (Ibid., s. 42.) (2.) Termination of the Bankruptcy. Recall. 197. The deliverance awarding sequestration is not subject Debtor or ^^ revicw nor to recall, except as follows — viz.: 1. If awarded a creditor without the dehtors consent, then he or a qualified creditor may within forty apply for Tccall within forty days. 2. If without the successor's "^^^ consent, and where not awarded on the application of a manda- sor. tory authorised by the deceased debtor, then the successor, or a qualified creditor, or any person having interest, may also apply for recall of the sequestration within forty days ; but if the cita- tion was ediotal, the application may be made before the publi- cation of the advertisement for payment of the first dividend ; Procedure, and in these several cases the application must be made to the Lord Ordinary, who orders a copy of the petition for recall, and of his deliverance, to be served on the parties who petitioned or concurred in the petition for sequestration, or on their respective known agents, and on the trustee, if appointed, and requires them to answer within a specified short time, and orders a notice of the presentation of the petition for recall to be published in the ' Edinburgh Gazette,' and on the expiration of the time so fixed he proceeds to pronounce judgment, and if lie shall recall the sequestration, the recall must be entered in the Eegister of Sequestrations and on the margin of the Register of Inhibitions Application (ibid., s. 31, and notes postea). 3. Mne-tenths in number and days. "' ^ value of the creditors ranked on the estate may at any time apply for recall to the Lord Ordinary, who orders notice of his deliver- ance to be published in the ' Edinburgh Gazette,' requiring all concerned to appear within fourteen days from the date of publi- cation to show cause why the sequestration should not be recalled, and on expiration of the said time he proceeds to pronounce judgment, and orders the recall to be entered ut supra if the sequestration is recalled (ibid., s. 32, and notes). 4. If it shall SEQUESTEATIONS. 45 appear to the Court of Session or to the Lord Ordinary, upon a eecam. summary petition by the accountant in bankruptcy, or any quali- if';;7i;ng. fied creditor or other person having interest, presented at any ''*'' '''=^'"''- time within three months after the date of the sequestration, that a majority of the creditors in number and value reside ia Eng- land or Ireland, and that from the situation of the property of the bankrupt or other causes his estate and effects ought to be distributed among the creditors under the Bankrupt or Insolvent Laws of England or Ireland, the said Court, in either division thereof, or the Lord Ordinary, after such inquiry as to them shall seem fit, may recall the sequestration (Act 1860, s. 2, postea). 198. Pending any petition for recall, and until the sequestra- Sequestra- tion be finally recalled, the proceedings go on as if no such peti- '""so^son, tion had been presented even to the bankrupt's discharge, but steps fall to be taken to prevent the creditors applying for recall being prejudiced by the discharge. (Act 18.56, s. 83, and notes. ) 199. At the first statutory meeting, or any meeting called for Deed of the purpose, a majority in number and four-fifths in value of ment™'^ qualified creditors may resolve that the estate ought to be Re^ti(,„ woimd up under a deed of arrangement, and that an application of creditors. should be presented to the Lord Ordinary or the Sheriff to sist procedure for a period not exceeding two months ; and on such resolution being carried, it is not necessary to elect a trustee. (Ibid., s. 35, and notes.) 200. It is lawful for the bankrupt, or any person appointed Eeport to by the meeting, to report such resolution to the Lord Ordinary ^^^'■'*^" or the Sheriff within four days of the date of such resolution, and to apply for a sist of the sequestration in terms thereof ; and Sist of se- the Lord Ordinary or the Sheriff may hear any party having "^"^^ interest, and if he shall find that such resolution was duly carried, and that the application is reasonable, may grant the same. (Ibid., s. 36, and notes.) 201. In the event of such application being granted, the interim Lord Ordinary or the Sheriff may, on the application of any ^^ntf^ qualified creditor, make such arrangement for the interim man- agement of the estate as he shall think reasonable, if any shall appear to be necessary. (Ibid., s. 37, and notes). 202. The creditors may, within the period of such sist, pro- Production duce to the Lord Ordinary or the Sheriff a deed of arrangement, " °° ' subscribed by or by authority of four-fifths in number and value 46 TREATISE ON Deed of of the creditors of the bankrupt, and which deed of arrangement MEOT."™' may be a mere settlement or arrangement by way of compensa- : — . tion (Act 1860, s. 6, postea) ; and the Lord Ordinary or the to creditors. Sheriff may consider the same, and make such intimation thereof as he may think proper, and hear parties having interest, and Approval of make any inquiry he may think necessary ; and if he shall be satisfied that such deed of arrangement has been duly entered into and executed, and is reasonable, he approves thereof, and declares the sequestration at an end, and such deed is thereafter as binding on all the creditors as if they had all acceded thereto, but the sequestration receives full effect for preventing challeng- ing or setting aside preferences. (Act, 1856, s. 38, and notes.) If not car- 203. If such resolution shall not be duly reported, or if a sist pvooedure^ be rcfuscd, or if such deed of arrangement shall not be duly pro- resumed, duced, or if it shall not be approved of, the sequestration must proceed, and the period of time subsequent to such resolution is not reckoned in calculating periods of time prescribed in the Act ; and the Lord Ordinary or the Sheriff may make all necessary orders, by appointing meetings of creditors and othervrise, for resuming the necessary procedure in the sequestration. (Ibid., s. 39, and notes.) Recording 204. If the scquestration be declared at an end, the judgment meiSf^" declaring the same is to be recorded in the same manner as if the sequestration had been recalled. (Ibid., s. 40, and notes.) CoMPosi- 205. At the first statutory meeting, the bankrupt or his tract""" friends or his successor.s, or one or more^of the partners of a ^ — company, may offer a composition to the creditors on the whole meeting. debts, with security for payment of the same ; and if the majority of qualified creditors in number and nine-tenths in value pre- sent at the meeting resolve that the offer and security be enter- tained for consideration, the trustee forthwith advertises in the ' Edinburgh Gazette ' a notice that an offer of composition has been so made and entertained, and that it will be decided upon at the meeting to be held after the examination of the bankrupt, and specifies the hour, day, and place, and also transmits by post letters to each of the creditors claiming on the estate or men- tioned in the bankrupt's state of affairs, containing a notice of such resolution, and of the day and hour at which, and the place where, such meeting is to be held, and specifying the offer and security proposed, and giving an abstract of the state of the affairs and of the valuation of the estatSj so far as the same can SEQUBSTEATIONS. 47 be done, to enable the creditors to judge of such offer and secu- Composi- rity. (Act 1856, s. 137, and notes.) As to nature of security, tbTct!""" vide s. 37, note e, postea. — ^ 206. If, at the meeting held after the bankrupt's examination, Acceptance, a majority in number and nine-tenths in value of qualiiied cre- ditors there assembled accept such offer and security, a bond of caution for payment of the composition, executed by the bankrupt or his successors, or the partners of the company, and the pro- posed cautioner, is to be forthwith lodged in the hands of the trustee, and the trustee thereupon subscribes and transmits a report of the resolution of the meeting, with the said bond, to the BUI Chamber Clerk or Sheriff Clerk, in order that the approval of the Lord Ordinary or Sheriff (whichever may be selected by the trustee) may be obtained thereto ; and if the Lord Ordinary or the Sheriff, after hearing any objections by creditors, shall find that the offer with the security has been duly made, and is rea- sonable, and has been assented to by the requisite majority at said meeting, he pronounces a deliverance approving thereof, but he hears any objection by opposing creditors ; and if he refuse to sustain the offer, or reject the vote of any creditor, he has to specify the grounds of refusal or rejection. (Ibid., s. 138, and notes.) 207. In like manner, at the meeting held after the examina- Offer at sub- tion of the bankrupt, or at any subsequent meeting called for the meetings, purpose by the trustee, with the consent of the commissioners, *"=■ the bankrupt, or his friends, or his successors, or any of them, or one or more of the partners of a company, may offer a com- position to the creditors on the whole debts, with security; and if a majority in number and four-fifths in value of quahfied creditors present resolve that the offer and security be entertained for con- sideration, the trustee calls another meeting, to be held at a spe- cified hour on a specified day, being not less than twenty-one days thereafter, and at a specified place, and, seven days at least before such other meeting, sends by post letters addressed to each of the creditors who have claimed on the estate or are mentioned in the bankrupt's state of affairs, whiqjj letters must contain a notice of such resolution, and of the hour, day, and place, and purpose of the meeting, and specify the offer and security proposed, and give an abstract of the state of the affairs and valuation of the estate, so far as can be done, to enable the creditors to judge of such offer ; and if, at the meeting so called, a majority in number and 48 TREATISE ON Composi- tion CON- TRACT. Bankrupt to make de- claration. Discharge. Recording of bond for composi- tion. Extract to be sent to accountant. Abbreviate to be re- corded. Effect of discharge. four-fifths in value of qualified creditors present accept the said offer and security, a bond of caution falls to be lodged, and a report made, and a deliverance pronounced ut supra. (Act 1856, s. 139, and notes.) 208. On ajaproval of the composition in either of these cases, the bankrupt, or his successor, or other party offering the com- position, has to make a declaration, or, if required by the trustee or any creditor, an oath or affirmation before the Lord Ordinary or Sheriff, that he has made a full and fair surrender of his estate, and has not granted or promised any preference or secu- rity, or made or promised any payment, or entered into any secret or collusive agreement or transaction to obtain the concurrence of any creditor to such offer and security ; and if the bankrupt be at the time beyond the jurisdiction of the Lord Ordinary or Sheriff, or is by a lawful cause prevented from appearing before the Lord Ordinary or Sheriff, commission may be granted to any fit person to take such declaration, or oath, or affirmation ; and the Lord Ordinary or Sheriff, on being satisfied therewith, pro- nounces a deliverance, discharging the bankrupt of all debts and obligations contracted by him, or for which he was liable at the date of the sequestration, and declares the sequestration at an end, and the bankrupt re-invested in his estate (reserving always the claims of the creditors for the said composition against him and the cautioner) ; and the bond of caution is to be recorded in the books of the Court of Session, or, when such deliverance is pronounced by the Sheriff, in the books of the Sheriff Court ; and an extract of such deliverance, signed by the Clerk of the BUls or the Sheriff Clerk, must forthwith be transmitted to the account- ant, who preserves the same, with the copy of the proceedings in the sequestration transmitted to him, as provided by the Act ; and the Clerk of the Bills or the Sheriff Clerk also issues an abbreviate of such deliverance, which is to be recorded in the Register of Inhibitions and the Register of Abbreviates of Adju- dications at Edinburgh, and the keepers of the said registers, if required, must grant certificates of such registration (Act 1857, s. 7, postea) ; and such deliverance of the Lord Ordinary or of the Sheriff operates as a complete discharge and acquittance to the bankrupt in terms thereof, and i.s to receive effect within Great Britain and Ireland and Her Majesty's other dominions, and an entry thereof is to be made by the accountant in the Register of Sequestrations. (Act 1856, s. 140, and notes, ^osfea.) SEQUESTRATIONS. 49 As to oath, vide note a ; or reduction of discharge, vide note d; composi- or challenge of preferences, vide note o ; or effect of discharge, tr^'^t"''' vide notes h and /■; ; or re-investiture, vide note n ; or failure — to pay composition, vide note p. 209. Before the deliverance approving of the composition is Audit of pronounced, 1. The commissioners must audit the accounts of accounts. the trustee, and ascertain the balance due to or by him, and fix the remuneration for his trouble ; and, 2. The expense attending the sequestration ; and such remuneration must be paid or pro- vided for to the satisfaction of the trustee and commissioners. (Act 1856, s. 141, and notes, jjosfca.) 210. Notwithstanding such offer of composition and proceed- Sequestra- ing consequent thereon, the sequestration continues, and the ce'edrnot- trustee proceeds in the execution of his duty as if no such offer withstand- ing oner, had been made, until the deliverance by the Lord Ordinary or the Sheriff be pronounced, when the sequestration ceases and is at an end, and the trustee is exonered and discharged ; provided, never- theless, that the trustee and his cautioner are liable, on petition to the Lord Ordinary or Sheriff by the bankrupt or his cautioner for the composition, to account for his intromissions and other acts as trustee. (Ibid., s. 142, and notes, postea.) 211. If an offer of composition have been made and rejected. New offer. or have become ineffectual, no other offer of composition can be entertained unless nine-tenths in number and value of all the creditors ranked or entitled to be ranked on the estate shall assent in writing to such offer, which offer must state the amount of composition and the terms of payment, and be subscribed by the cautioner proposed, in which case a meeting is to be called in manner before-mentioned by the trustee for finally disposing of the same ; and if, at the meeting so called, a majority in number and nine-tenths in value of the qualified creditors shall accept such offer and security, and the same shall be assented to by nine- tenths in value of all the creditors who have produced oaths as aforesaid, a bond of caution is to be lodged, and a report made and deliver- ances pronounced, and the other proceedings to take place and have effect in the same manner as is provided by the Statute for other offers of composition. (Ibid,, s. 145.) wShout'"' 212. The bankrupt may petition the Lord Ordinary or the composi- Sheriff to be discharged of his debts, 1. At any time after the ™^ second statutory meeting, if every qualified creditor concur in ff^^j.*'™ ^^ the petition ; and, 2. On the expiration of six months from the meeting. D 50 TREATISE ON Discharge ■WITHOUT COMPOSI- TION. After six months. After twelve mouths. After eigh- teen months. After two years. Notices. Appearance in court. Objections. If only en- titled to Trustee's report. Declaration by bank- rupt. date of the deliverance actually awarding sequestration, if a majority in number and four-fifths in value of qualified creditors concur ; and, 8. On the expiration of twelve months from said date, if a majority in number and two-thirds in value concur ; and, 4. On the expiration of eighteen months from said date, if a majority in number and value concur ; and, 5. On the expiration of two years from said date without any consents ; and the Court orders the petition to be intimated in the ' Edinburgh Gazette,' and to each creditor ; and if at the distance of not less than twenty-one days from the publication of such intimation, and on evidence being produced of concurrence as aforesaid, where such concurrence is required, there be no appearance to oppose the same, the Court may refuse the application, if it shall appear from the report of the accountant in bankruptcy, or other sufficient evidence, that the bankrupt has fraudulently concealed any part of his estate or effects, or has wilfully failed to comply with any of the provisions of the Bankruptcy (Scotland) Act 1856, or may pronounce a deliverance finding the bankrupt entitled to a dis- charge ; but if appearance be made by any of the creditors, or by the trustee, the Court judges of any objections, and either finds the bankrupt entitled to his discharge, or refuses it, or defers the consideration of the same for such period as it may think proper, and may annex such conditions thereto as the justice of the case may require ; but no discharge can be granted to the bankrupt where, under the provisions of the Act 1856, jpostea, he is only entitled to apply for a decree of cessio, but it is not competent for the bankrupt to present a petition for his discharge, or to obtain any consent of any creditor to such discharge, until the trustee shall have prepared a report with regard to the conduct of the bankrupt, in terms of Act 1856, s. 146 ; and such report must be produced in the proceedings for the bankrupt's discharge, and be referred to by its date, or by other direct reference, in any consent to his discharge. (Act 1856, s. 146, and notes, postea; Act 1860, s. S,postea.) 21 3. If the bankrupt be found entitled to his discharge, he makes a declaration, or, if required by the trustee or any creditor, an oath or affirmation, before the Lord Ordinary or SheriiF, that he has made a full and fair surrender of his estate, and has not granted or promised any preference or security, nor made or promised any payment, nor entered into any secret or collusive agreement or transaction to obtain the concurrence of any credi. SEQUESTRATIONS. .^] tor to his discharge ; and if the bankrupt shaU be at the time disohaboe beyond the jurisdiction of the Lord Ordinary or Sheriff, or is by without lawful cause prevented from coming before the Lord Ordinary or 1°"°^^ Sheriff, commission maybe granted to any fit person to take such Co^ssion declaration or oath or affirmation, and the Lord Ordinary or the '^'g^ Sheriff, on being satisfied with the same, pronounces a dehverance Discharge. discharging the bankrupt of all debts and obligations contracted by him, or for which he was liable at the date of the sequestra- tion ; and when the deliverance discharging the bankrupt is pro- Extract to nounced by the Lord Ordinary or Sheriff, an extract thereof, accoun'tant signed by the Clerk of the Bills or the Sheriff Clerk, is forthwith to be transmitted to the accountant, who preserves the same with the copy of the proceedings in the sequestration transmitted to him, and abbreviates thereof are to be recorded in the Eegisters Recording of Inhibitions and Adjudications at Edinburgh ; and such deliver- vLtes''.'^^" ance operates as a complete discharge and acquittance to the Effect of bankrupt in terms thereof, and is to receive effect within Great '^'^"^^'S^- Britain and Ireland and all Her Majesty's other dominions, and an entry thereof is to be made by the accountant in the Eegister of Sequestrations. (Act 1856, s. 147; Act 1857, s. 7,postea.) 2] 4. The Act 1856, postea, does not extend to discharge any Cro-™ prisoner with respect to any debt due to Her Majesty or her sue- ^^^^' cessors, or to any debt or penalty with which he shall stand charged at the suit of the Crown ; or any person for any offence committed against any act or acts relative to any branch of the public revenue, or at the suit of any Sheriff or other public officer upon any bail-bond entered into for the appearance of any person prosecuted for any such offence, unless the Commissioners of Her Majesty's Treasury for the time being shall consent to such discharge. (Act 1 856, s.- 148.) 21 5. If the debtor shall die after the petition for sequestration b^kbuS. is presented, the proceedings are, notwithstanding, to be followed „ — out in terms of the Act, so far as circumstances wiU permit, tion to be /TU-j 0,4 N followed (Ibid., s. 34.) out. 216. 1^0 process of sequestration falls asleep or is liable to be Pkocess dismissed under 16 & 17 Vict. c. 80, s. 15. (Act 1856, s. 43, s°l|p^°'' postea.) De^eop 217. A majority in number and value of qualified creditors, at oessio mat any meeting called for the purpose after the election of the ed. trustee, if it shall appear to them that the estate is not likely to p^^j.^^ yield free funds for division among the ordinary creditors after of creditors. 52 TREATISE ON CESSIO MAT BE ORANT- ED. Report, of same. Court to decide. Decree of payment of preferable debts and expenses beyond ^100, may resolve that the bankrupt shall only be entitled to apply for and obtain a decree of cessio, and shall have no right to a discharge in the sequestration ; and on such resolution being passed, it is the duty of the trustee, after giving eight days' previous notice to the bankrupt, to report such resolution to the Lord Ordinary or the Sheriff, who hears parties if required, and decides with reference to the whole circumstance of the case, with or without a report from the accountant whether such resolution shall be confirmed or recalled ; and if such resolution shall be confirmed, the bank- rupt has no right to a discharge in the sequestration, but is en- titled to apply for a decree of cessio, and the Court has power to grant such decree in the sequestration without requiring the bankrupt to bring a separate process ; and in all other respects the sequestration falls to be proceeded with in common form. (Act 1856, s. 168 and notes.) Evidence OF THE SEQUES- TRATION. Within Scotland. In rest of Her Majes- ty's domin- ions. Maybe written or printed. (3.) Evidence of the Sequestration. 218. The principal petition for sequestration, with the deliver- ance thereon, or a copy thereof certified by the Clerk of the Bills where the sequestration is awarded by the Court of Session, or by the Sheriff Clerk where it is awarded by the Sheriff, is sufficient prima facie evidence of the sequestration in any Court within Scotland. (2 Dickson on Evidence, p. 629.) 219. In regard to the rest of Her Majesty's dominions, all deliverances under the Act 1856, postea, purporting to, be signed by the Lord Ordinary or by any of the Judges of the Court of Session or by the Sheriff, as well as all extracts or copies thereof, or from the books of the Court of Session or the Sheriff Court, purporting to be signed or certified by any Clerk of Court, or extracts from or copies of registers purporting to be made by the keeper thereof or extractor, must be judicially noticed by all Courts and Judges in England, Ireland, and Her Majesty's other dominions, and must be received as p^'ima facie evidence with- out the necessity of proving their authenticity or correctness, or the signatures appended, or the oflicial character of the persons signing, and are sufficient warrants for aU. diligence and execu- tion by law competent. (Act 1856, s. 174, postea.) 220. All deHverances under the Act 1856, postea, may be either printed or in writing, or partly both. (Ibid., s. 175.) SEQUESTRATIONS. 53 (i.) Status or Personal Rights of Bankrupt. 221. The sequestration vests the trustee in the bankrupt's Status of property, but confers no right over his person (Act 1856, s. 102) ; ''^^^''^• and the discharge only frees the bankrupt of his obligations as °'™'''- a debtor, but does not dissolve the other ties and relations of life (Ibid., s. 140 and 147). 222. Accordingly, the sequestration does not in any way affect Effect on the domestic relations of husband and wife, or parent and child. re™t?ons. 223. Neither does it affect directly the official relations of official reia. the bankrupt ; e. g., he does not necessarily lose, 1. A public '''"'^■ office — as that of judge, clergyman, sheriff-clerk, town-clerk, or session- clerk ; or, 2. A private office — as that of trustee, factor, tutor, curator, or director. (1 B. C. 125.) 224. Neither, 1 . Does the bankrupt lose his political status Political of a peer of the realm ; but, 2. It is doubtful whether, as a "''""'■ member of the House of Commons, a Scotch bankrupt would vacate his seat under 52 Geo. III. c. 144. 8. The bankrupt, Electoral however, loses his electoral privileges, as they are based upon a p"^''^s''^- property qualification. (2 & 3 AYm. IV. c, 65.) 225. As to the industrial or commercial relations of life, a industrial distinction falls to be observed between those that are dependent '■^''*'"*°*- on property and those which are not. 1. Where the personal Founded on relation is the result or consequence of a patrimonial right or property.' relation, then it is lost to the bankrupt in two events — viz., in the event of an irritancy in the constitution of the right, such as occurs frequently in leases where they are forfeited by the occur- rence of the tenant's bankruptcy {Richardson, 24th June 1835 ; 1 B. C. 81); and also in the event of the trustee taking up the property upon which the personal relation is contingent, as in the case of his adopting a feu-right (2 B. C. 413). In both these cases, the personal relations of landlord and tenant, and of superior and vassal, are dissolved, in so far as the bankrupt is concerned, in consequence of the property upon which they were founded having been assumed by the trustee. The same rule applies to the relations of buyer and seller, mortgager and mortgagee, insurer and insured, and many others. But where the trustee cannot, or wUl not, take up the property, and where the right is not lost by an irritancy, then the bankrupt still continues to hold the right, as it does not appear that, under any 54 TREATISE ON Status of circumstances, does the sequestration eo ipso dissolve a contract BANKRUPT, ^jjgpg lY^Q bankrupt or his creditors are willing to perform his part (1 B. C. 80 and 447). On the other hand, the bankrupt has the option of rejecting the contract, and in the event of his doing so, then the other party may rank upon the estate for damages (2 B. C. 413) ; and in the event of the bankrupt being discharged, his discharge will wipe out all his liabilities under Notfounded the contract (Act 1856, s. 140 and 147). 2. Where the rela- on property. ^-^^ -^ p^^g^y industrial and personal, and not dependent upon property or capital, the same rule above stated applies — viz., that the sequestration does not seem per se to dissolve the con- tract, no matter whether the contract be one between master and workman for the execution of a given piece of work, or one between principal and agent, or agent and client, for the execu- tion of business de die in diem, or one between copartners or master and apprentice, or master and servant, for the employ- ment of skill and labour during a fixed period of time. In all these cases, the parties contracting with the bankrupt appear bound to fulfil their contracts, provided he or the creditors offer to fulfil his part (2 B. C. 413). They are not, however, bound to do more — e. g., the workman is only bound to finish the job, and the agent is only bound to complete that part of the agency in which he was engaged. The copartner, apprentice, and servant, however, seem bound to complete the parts of their respective contracts to which they are bound, unless they get the authority of a competent court to dissolve the contract — a course which they are perfectly entitled to take : for while, on the one hand, they are exposed to the disadvantage of having the contract thrown up by the bankrupt, and their whole reme- dies converted into a ranking upon his estate ; yet, on the other hand, as these different contracts imply a delectus personce, they are entitled to the advantage of applying to the Court to free them of the contract, on the ground that they never would have entered into it if they had contemplated so important an occur- rence as the bankruptcy of the party with whom they were contracting (2 B. C. 413). g^jjjj, (5.) Rights of Property in the Banlcrupt. eupt's RIGHTS. 226. The bankrupt is divested, as at the date of the sequestra- Divestiture, tion, of all property, heritable or moveable, wherever situated, SEQUESTRATIONS. 53 and all rights, powers, and interests therein, capable of legal bank- alienation, or of being affected by diligence or attached for debt ni°G^is. (Act 1856, s. 29, 30, and i, and notes, postea). — " 227. Also of all snch property which may thereafter belong to Subsequent him before the date of his discharge. (Ibid., s. 103.) acquisitions. 228. The party applying for sequestration presents, before the Recording expiration of the second lawful day after the first deliverance if ^ate o7se- given by the Lord Ordinary, or presents or transmits by post ^ ject to the diligence of creditors, such as the annuities of the fanS!"'"'^ widows of the clergy and others (1 B. C. 129 and 130). The only remedy in this case is imprisonment or the refusal of a dis- charge, in order to attach any surplus that remains after deduct- ing a moderate provision for subsistence. (1 B. C. 130.) Offices. 233. As to offices, 1. The bankrupt loses such as are heritable or patrimonial, but not such as are personal (1 B. C. 125). Salaries. 2. The Salaries of the latter offices are, however, in certain cases, attachable, in so far as not aKmentary. (1 B. C. 127.) 3. Pension, At common law, any government pension, or pay, half-pay, or *"■ salary, is not attachable; but by the Bankruptcy (Scotland) Act 1856 (s. 149), the Lord Ordinary or Sheriff may order such portion of the pay, half-pay, salary, emolument, or pension of any bankrupt, as on communication from the Lord Ordinary or Sheriff to the Secretary of War, or the Lords Commissioners of the Admiralty, or the Commissioners of the Customs or Excise, or the chief officers of the department to which such bankrupt may belong or may have belonged, or under which such pay, half-pay, salary, emolument, or pension may be enjoyed by such bankrupt, or to the Court of Directors of the East India Com- pany, they respectively may, under their hands, or under the hand of their respective chief secretary, or other chief officer for the time being, consent to in writing, to be paid to the trustee, in order that the same may be applied in payment of the debts of such bankrupt ; and such order and consent being lodged in the office of Her Majesty's Paymaster-General, or of the secretary of the said Court of Directors, or of any other officer or persons appointed to pay or paying any such half-pay, salary, emolument, or pension, such portion of the said pay, half-pay, salary, emolu- ment, or pension as shall be specified in such order and consent falls to be paid to such trustee until the Lord Ordinary or Sheriff shall make order to the contrary. (Act 1856, s. 149.) Honours 234. The bankrupt retains honours and dignities. (1 B. C. anddigni- 124.) ties. ^ Copyrights. 235. The bankrupt likewise retains the copyright of all un- published literary compositions. (1 B. C. 119.) Leases 236. The bankrupt may retain the tenant's right in a lease StorTeT" ■^^^'^^ *^^ creditors are excluded (1 B. C. 80), unless the land- ciuded. lord chooses to accept the trustee (1. B. C. 77; Barrows, 2oth SEQTJESTRATTONS. 57 May 1852) ; but, of course, he is subject to have all future ac- bank- quisitions seized by the trustee. (Act 1856, s. 103.) ""^t's 237- The bankrupt has the right to all claims, estates, and — actions abandoned by the trustee. (Ibid., s. 29, note /.) Hght"'!'"""' 238. There is nothing to prevent the bankrupt from acquiring New acqui- estates after sequestration, either by industry or succession ; but *'''™'- they are liable to be attached by the trustee. (Ibid., s. 103, and notes.) 239. By composition settlement duly completed, the bankrupt Retroces- becomes reinvested in all the estates of which he had been pre- °'™' viously divested (Ibid., s. 140), and may also acquire the right of reducing preferences. (Ibid., s. 140, note o.) 240. The bankrupt has a right to any surplus after payment Surplus. of his debts, with interest, and charges of recovering and distri- buting the estate. (Ibid., s. 155.) (6.) Powers of BanTcrupt. rttpt's 241. The bankrupt (or debtor, as he may be called at this powees. stage) may apply for sequestration. (Act 1856, s. 13.) Mayappiv 242. He may also appeal against a sequestration to the Court ^°^ ?eques- of Session or Lord Ordinary, where there are more sequestrations May appeal than one awarded against him, with a view to a remit of them "gainst se- aU being made to the same Sheriff. (Ibid, s. 19.) -^^ ^ 'j°' 243. He may also apply to the Court of Session for seques- '" Court of tration, although it has been refused by the Sheriff. (Ibid., s. 19.) Sheriff r'e- 244. He may also oppose sequestration. (Ibid., s. 30.) queltrat^r 245; After divestiture by sequestration, the bankrupt cannot. May oppose of course, litigate anent his estates in competition with his t?,^'^""'' trustee ; and any case in which the bankrupt is engaged, relative Litigations. to his estate, will be sisted till intimation is given to the trustee. Process sist- {Hallowell, 17th Feb. 1843). But the trustee may abandon a tee called.' right, which the bankrupt will then be entitled to take up and Maytakeup prosecute {M'Kersy, 20th June 1850), In that case he was rights.™^ held bound to find caution for the expenses both before and after Finds cau- the bankruptcy. But in the following cases, where he appeared co°°a.'"^ .as defender, he was held not bound to find caution for expenses : Notgeue- — 1. In an action of damages for seduction {Robertson, 19th ^^'//^J^^™ Nov. 1833). 2. In an action as to irritancy of a lease where the trustee's right is excluded {Fairlie's Trustees, 6th March 1830, revd. 1st March 1833). S. In an application for recall of his 58 TREATISE ON Bahk- sequestration {Hooper, 20th July 1850). 4. In a case of fraud ^^^|g aUeged against him (M'Intosh, 29th June 1826). 5. In order to protect his person from imprisonment (Clark and Eoss, 20th May 1813). 6. In a suspension of a decree in absence (Stephen, 31st May 1860). In this case it was laid down that the matter of caution was entirely a matter for the discretion of the Court. May apply 246. The bankrupt may apply for recall. (Act 1856, s. 36 for recall. . s postea.) May report 247. The bankrupt may report to the Court a resolution of the wind up by Creditors to wind up the estate by deed of arrangement, and may ran'^ement ^PP^y ^°^ ^ ^i^*' °^ ^^^ Sequestration. (Ibid., s. 36.) May apply 248. The bankrupt may apply to the Court by whom seques- for libera- t^ation is awarded, either in the petition for sequestration or by separate petition, for liberation from prison, after such intimation to the incarcerating creditor or his known agent as the Court may deem just ; and if the application be refused, it is com- petent for the debtor to make a new application for liberation, with consent of the trustee and commissioners. (Ibid., s. 45.) May appeal 249. The bankrupt may appeal the judgment of the Sheriff if fusaiT' '^' refusing liberation to the Court of Session, or, during vacation, to the Lord Ordinary. (Ibid., s. 46.) May call 250. The bankrupt may apply to the Lord Ordinary or Sheriff to account! to have the judicial factor, the trustee, and commissioners de- cerned to account for their intromissions and management. (Ibid, s. 86.) May apply 251. If the bankrupt has been committed to prison by the warrant of Sheriff upou a refusal to answer questions or produce docu- imprison- ments, he cannot bring the warrant under review, but he may apply to the Lord Ordinary for recall. (Ibid., s. 93.) May make 252. The bankrupt, before the close of his examination, may onYtateof make such additions to or alterations upon the state of his affairs. affairs as may have occurred to him to be necessary to give a full view of his affairs. (Ibid., s. 95.) Cannot 253. All payments and preferences or securities obtained by IftCT'sequea- 01" granted to prior creditors, and all acts done or deeds granted tration. jjy ^jjg bankrupt after the date of the sequestration and before his discharge, out of or in relation to the estate (unless with the consent of the trustee), shall, in the event of sequestration being May offer awarded, be nuU and void. (Ibid., s. 111.) Stmtet- 254. The bankrupt may make an offer of composition at the 'Dg- first meeting. (Ibid., s. 1 37.) SEQUESTRATIONS. 59 255. Also at the second statutory meeting, or at any subse- bank- quent meeting called for the purpose. (Act 1856, s. 139.) ^^^^'^ 256. The bankrupt may appeal against the commissioners' ^"—^' deliverance auditing the accounts of the trustee, and ascertain- t^ZmZ- mg the balance due by or to him, and fixing the remuneration '"«• for his trouble. ("Ibid, s 141 ") ^''^ "■pp'^"' n-f. rriL ^^'■■j againstcom- 25 ^ The bankrupt may call the trustee and his cautioner to ™a-j™^"' account for the trustee's intromissions and his other acts, not- May "call withstanding the statutory discharge which is pronounced in the *™*''^'' "* trustee's favour, when the estate is wound up by an offer of com- notw™h- positioa (Ibid., S. 11.2.) standing ^ V ' / discharge. 258. The bankrupt is not entitled to object to any debt which Must object he has given up in the state of his affairs as due by him, or ad- '" '^''?'' ",' . J . , . J ) " "•"■ security be- mitted, without question, to be reckoned in the acceptance of the fo'-'^ - 8WGr 011G9- of the Sheriff, or without lawful cause shall refuse to sign his tions, &c. examination, or to produce books, deeds, or other documents in his custody or power relating to the estate, the Sheriff may grant warrant to commit him to prison, there to remain until he comply with the order, which warrant must specify the question and answer, book, deed, document, or the refusal to swear, or to sign the examination ; and such warrant is not sub- ject to the review of the Court of Session, but the bankrupt may apply by written petition (without argument) to the Lord Ordinary for a recall of the warrant, and the Lord Ordinary orders the petition to be served on the trustee or the creditor, and thereafter hears parties viva voce and pronounces judgment. (Ibid., s. 93, and notes, postea.) 282. If it shall appear to a majority of the creditors in number Creditors and value assembled at any meeting after the examination of the ™g*/ trustee bankrupt, that he has not made a full and fair surrender of his *° proceed ^ ' against nim estate, or that he has disposed of or concealed any part of his if guilty of funds to the prejudice of his creditors, or that his bankruptcy ™" ' has been fraudulent, they may authorise the trustee to proceed against him in terms of law at the expense of the estate. (Ibid., s. 97, and notes, postea.) 283. If the bankrupt shall have been personally concerned in. Discharge to or cognisant of, the granting, giving, or promising, any prefer- ^^^^l^^^"^ ence, gratuity, security, payment, or other consideration, or in panted pre- any secret or collusive agreement or transaction with a view to &c. his discharge, he forfeits all right to a discharge, and all benefits under the Act; and such discharge, if granted, either on or without an offer of composition, is to be annulled ; and the trustee, or any one or more of the creditors, may apply by petition to the Lord Ordinary to have such discharge annulled accordingly. (Ibid., s. 151.) 284. If the accountant shall possess information that shall information lead him, on reasonable grounds, to suspect fraudulent conduct °„^°^_ by the bankrupt, such as may infer punishment, he is entitled to give information to Her Majesty's Advocate, who is to direct such 6i TREATISE ON proce- inquiry, and take sucli proceedings therein as he shall think pro - "^'^'^ per. (Act 1856, s. 162.) AGAINST - . . . J. , BANKRUPT. 285. In addition to the above, the bankrupt is of course sub- Ai^bie ject to all manner of criminal procedure to which his conduct Subject to 286. He is also subject to all actions (Walker, 14th May 1835) process and ^nd diligence (Neilson, 2d Feb. 1843) at the instance of his cre- diJigence if o\ not protect- ditors, uulcss he is protected, and until his discharge. ed. Sect. 2. — Of Okdinaey C'eeditoes. (1.) Requisites for Petitioning or Concurring in a Petition for Sequestration. Creditobs' 287. The debt of the creditor must be not less than .£'50, and tion"fob ^1°* ^^®® ^^^^ °^^^ ^^ there be two creditors, and not less than petition- ^100 if there be three or more : and the debts must not be con- ING. " 1 — tingent. (Act 1856, s. 14, and notes, postea.) naTuToT'' 288. An oath or affirmation must be made to the verity of the debt. creditor's debt (ibid., s. 21), and must state what other persons, s^ecifysecu- ^^ ^^V' ^^^' ^'^sides the bankrupt, liable for the debt, or any rities, &c. part thereof, and specify any security which he holds over the estate of the bankrupt, or of other obligants, and depones that he holds no other obligants or securities than those specified ; and where he holds no other person than the bankrupt so bound, and no security, he must depone to that effect (ibid., s. 22, and notes, postea.) Affirmation. 289. Au affirmation will be sufficient in the place of an oath in the case of Quakers, Moravians, Separatists, and indeed of all who have conscientious scruples to the taking of an oath. (Ibid., s. 21, note ^r, postea.) Oath of ere- 290. When made by the creditor himself, the oath or affirma- duiity. ^^Jqjj must be one of absolute knowledge, or, in other words, simply one of verity ; but where by any party representing the creditor, then it may be one of credulity (ibid., s. 23 and 25), ex- cept in the case of corporations, when the oath or affirmation must be one of verity (ibid., s, 25). Where ere- 291. Where the creditor is in Great Britain or Ireland, he kingdom "^ ^^^^^ ™^^® *^® °^*^ °^ affirmation himself ; but if not, then he may either do so himself, or his known agent or mandatory in Great Britain or Ireland may make it. (Ibid., s. 22 and 23.) SEQUESTRATIONS. 65 292. When the creditor is a corporation, the oath or affirraa- Creditoes' tion made by the secretary, manager, cashier, clerk, or other ^f^"™^" principal officer of such corporation, is sufficient, although the petition- person making the same be not a member of such corporation, "-^ or, in case of other companies, an oath or affirmation by a partner 5^10?° cot- is sufficient. (Act 1856, s. 25.) poration. 293. Where any creditor shall be under age, or incapable to where cre- make oath or affirmation, then an oath or affirmation by his !"''"' ""?"'■ authorised agent, factor, guardian, or manager, is sufficient. (Ibid., and notes, postea.) 294. Such oath or affirmation, in the case of its being made Before within the kingdom of Great Britain and Ireland, must be taken J^'^tftaken. •before a judge ordinary, magistrate, or justice of the peace (Act 1856, s. 22) ; but in the case of its being made by the creditor when out of the kingdom, it must be taken by him before a magistrate, or justice of the peace, or other person qualified to administer oaths in the country where he resides (he being certi- fied to be a magistrate or justice of the peace, or qualified as aforesaid by a British minister or British consul, or by a notary public). (Ibid., s. 23.) 295. If the debtor is living, and a creditor is petitioner for- When sequestration, he must, when the debtor's bankruptcy is founded sanctuary. on his retiring within the sanctuary, swear or affirm that he believes the debtor to have so retired. (Ibid., s. 24.) 296. If the debtor is deceased, and a creditor is petitioning, if debtor he must depone or affirm as to the place where the debtor resided ""^ ' or had a dwelling-house or carried on business in Scotland at the time of his death, and whether he was then owner of estates in Scotland, aU in terms of Act ]856, s. 24. 297. There must also be produced with the oath or affirmation Production such account and vouchers as are necessary to prove the debt " ^°""^ '^"^^^ referred to. (Ibid., s. 49.) (2.) Requisites for Voting and Acting. QUALiMaA-' 298. The requisites for petitioning or concurring — viz., para- vo°Tmo.°" graphs 288, 289, 290, 291, 292, 293, and 294, sMpra— are all ^—^^^ requisites for voting and acting. (Ibid., s. 49 and 50.) quisitesfor 299. The creditor, before voting or acting, is bound to pro- ^rfrequi^fte duce at the meeting, or in the hands of the trustee, his oath or for yotm^- affirmation, and the-account and vouchers referred to. (Ibid., ff"a"hs'™d s. 49 and 50.) ^™'^i'^"' E G6 TREATISE ON Creditors' 300. A creditor is not entitled to claim for any interest accru- ?ro1re tor" i°g after the date of the sequestration ; and if a debt is not pay- vormo. able till after that date, the creditor is entitled to claim for it Claim for Only after deduction of the interest from that date ; and he is also nT°^'' liable to deduction of any discount beyond legal interest to which of interest, his claim is liable by the usage of trade applicable to it ; but he Also dis- is not bound to specify separately in his oath or claim for his s ecifica- *^®^* *^® amouut of any interest due thereon, or of any interest tion of in- or discount deducted therefrom, or to specify therein any accum- terest &c ^ x t/ j ' ' ulated sum of principal and interest ; and if there be any residue of the estate after discharging the debts ranked, he is entitled to claim out of such residue the full amount of the interest on his debt in terms of law. (Act 1856, s. 52.) Where debt 301 . When the claim of a creditor depends upon a contin- contmgent. ggjicy which is unascertained at the date of lodging his claim, he must apply to the Sheriff, if the trustee has not been elected, or, if elected, to the trustee, to put a value on such debt, and the Sheriff or trustee (as the case may be) puts a value thereon, as at the date of such valuation ; and on such value being fixed, such creditor is entitled to vote in respect of such value, and no more : Provided that if such contingency have taken place before the debt has been valued, such creditor may vote in respect of the amount of the debt ; but the same is not to disturb any former dividends allotted to other creditors, and when such application is made to the Sheriff or trustee, notice thereof is to be given to the bankrupt and petitioning or concurring creditor. (Ibid., s. 5.3.) Where debt 302. Any Creditor in respect of an annuity granted by the nui^ty.™ bankrupt must, if the trustee has not been elected, apply to the Sheriff, or, if elected, to the trustee, to put a value on such an- nuity ; and the Sheriff or trustee (as the case may be) puts a value on the annuity, regard being had to the original price given for the annuity, deducting therefrom such diminution in the value of the annuity as shall have been caused by the lapse of time since the grant thereof to the date of the sequestration ; and such creditor is entitled to vote in respect of such value, and no more : Provided always that when such application is made to the Sheriff, notice thereof must be given to the bankrupt and the petitioning or concurring creditor. (Ibid., s. 54.) Must value 303. If a creditor hold a security for his debt over any part of and deduct <» i i i i securities, the cstatc of the bankrupt, he must in his claim put a specified SEQUESTRATIONS. 67 value on such security, and deduct such value from his debt, and Creditors' specify the balance ; and if the estate over which the security ?ZsTob^' extends be sold, he must specify in his oath the free proceeds ■^'otinq. which he has received, or shall be entitled to receive, therefrom, and specify the balance due after deduction thereof, and he is entitled to vote in respect of the balance, and no more ; and in questions as to the disposal or management of the estate subject to his security, he is entitled to vote as a creditor for the full amount of his debt without making any such deduction. (Act 1856, s. 59.) 304. When a creditor has an obligant bound with but liable in Also obiiga- relief to the bankrupt, or holds any security from an obligant wWchbank- liable in relief to the bankrupt, or any security from which the ™P' ^f '^ bankrupt has a right of relief, such creditor must in his oath put ii'ff. a specified value on the obligation of such obligant, and on such security to the extent to which the bankrupt is entitled to relief, and he must deduct such value from his debt and specify the balance, and he is entitled to vote in respect of such balance, and no more. (Ibid., s. 60.) 305. A creditor on the estate of a company is not bound, for Valuation the purpose of voting on the company's estate, to deduct from tSn of**™ his claim the value which he may be entitled to draw from the '='^™ "^ estates of the partners ; but if he claim on the estate of a partner, estate. he must, before voting, in his oath put a speciiied value on his claim against the estate of the company, and also against the other partners thereof, in so far as they are liable to relieve such partner, and deduct such value from his debt and specify the balance, and he is entitled to vote as a creditor for the said bal- ance, and no more. (Ibid., s. 61.) 306. Any person who shall acquire, after the date of the seques- where debt tration, otherwise than by succession or marriage, a debt due by ^terseques- the bankrupt, and the wife of the bankrupt, and any trustee for Nation. her, are not entitled to vote in the election of trustee or commis- sioners. (Ibid., s. 64.) 307. When it shall appear to the Sheriff or to the trustee that correction the oath or claim of any person is not framed in the manner ° "^ *""■ required by the Act, the Sheriff or tru,stee (as the case may be) calls upon such person or his agent or mandatory to rectify his oath and claim, pointing out to him wherein it is defective ; and unless such person or his agent or mandatory shall thereupon make such alteration upon his oath and claim as may be neces- 68 TREATISE ON Cebditors' sary in order to rectify the same, the Sheriff or trustee (as the ?iot™or' case may be) wiU disallow or reject such oath and claim : Provided VOTING, always that when the failure to comply with the provisions of the Act shall appear to have been made for some improper or fraudulent purposes, or where injury can be qualified by the other creditors or any of them in respect thereof, it is not in- cumbent upon the Sheriff or trustee to give such person an opportunity to rectify such oath aud claim. (Act 1856, s. 51.) Creditor 308. Where a creditor has in his oath put a value on any newdaim. sccurity or obligation, he may at any time before he has been required to convey or assign the same to the creditors, on pay- ment of the specified value, with twenty per cent additional, correct such valuation by a new oath or claim, and deduct such new value from his debt. (Ibid., s. 62.) (3.) Requisites for Ranking. Creditoes' 309. The requisites for petitioning or concurring — viz., para- fiomion graphs 288, 289, 290, 291, 292, 293, and 294, sitpra— are all RANKING, requisites for ranking. (Ibid., s. 49.) Certain re- 310. The requisites for voting and ranking — viz., paragraphs petitioning 300, 301, 302, and 307, swpra— are all requisites for ranking. siterfor'" O-^"^^; S- 52, 53, 64, and 51.) ranking. 311. To entitle any creditor to payment of the first dividend, Also certain ]jg -j/xmst produce at any meeting, or in the hands of the trustee, for voting, his oath Or affirmation, as also the account and vouchers necessary Time for to prove his debt, at least two months before the time fixed for claims. payment of said dividend, when the time of payment shall not have been accelerated, or one month before said time when it shall have been accelerated ; and to entitle any creditor to pay- ment of any of the subsequent dividends, he must produce, as foresaid, his oath and grounds of debt at least two months before the time fixed for payment of the dividend which he means to claim. (Ibid., s. 123, and notes, postea.) Time for 312. If, howcver', the creditor is not in possession of such ciaim^^&c^ accounts and vouchers previously to the period assigned for lodg- ing claims with a view to a share in any dividend, he must state in his oath the cause of the said account and vouchers not being produced, and in whose hands, to the best of his knowledge, the same are ; which oath entitles him to have a dividend set apart SEQUESTEATIONS. 69 till a reasonable time be afforded for production thereof, or for cueditoes' otherwise establishing his debt according to law. (Act 1856, ?kn"for' S. 50.) BANKINa. 313. Again, if the creditor has not produced his oath and Equalising grounds of debt in time to share in the first dividend, but has ^'^''^^''^■ done so in time to share in the second dividend, he is entitled, on occasion of payment of the second dividend, to receive out of the first of the fund (if there be sufficient for that purpose) an equalis- ing dividend corresponding to the dividend he would have drawn if he had claimed in time for the first dividend ; and the same rule applies to all subsequent dividends. (Ibid., s. 123.) 314. Lastly, when any creditor not resident within Great When cre- Britain or Ireland at the date of the deliverance awarding seques- tration, or at any time within five months thereafter, lodges his oath and grounds of debt fourteen days previous to any time fixed for payment of a dividend, though not in time to entitle such creditor to participate in such dividend, the trustee makes such deduction from the divisible fund as shall be equal to the dividend which would have been payable to such creditor had his oath and grounds of debt been timeously lodged and his claim been sustained, and the sum so deducted forms part of the fund for division on the occasion of payment of the next dividend, which the creditor may thus claim as an equalising dividend. (Ibid., s. 123 and 124) 315. "When the creditor holds a security over any part of the Value and bankrupt's estate, he must on his oath or affirmation put a speci- jitie"! ^^™ fied value on such security, and deduct such value from his debt, and specify the balance ; and the trustee, with consent of Trustee en- ... ,. 1 T . • i- J, titled to as- the commissioners, is entitled to a conveyance or assignation ot signation. such security at the expense of the estate on payment of the value so specified out of the first of the common fund, or to re- serve to such creditor the full benefit of such security, and in either case the creditor is entitled to be ranked for and receive a dividend on the said balance, and no more. (Ibid., s. 65.) 316. When a creditor claims on the estate of the partner of Valuation ,01 claim on a company in respect of a debt due by such company, the trustee company on the estate of such partner must put a valuation on the estate '^^'*'^' of the company, and deduct from the claim of such creditor such estimated value and rank, and pay to him a dividend only on the balance. (Ibid,, s. 66.) 70 TREATISE ON (4.) Evidence of Qualifications of Creditors. Evidence 317. The oaths prepared in maimer before mentioned fall to ?oB™QUA- be produced in the process for sequestration, or at a meeting of LiPicA- creditors, or in the hands of the trustee. (Act 1856, s. 21 and 49.) — L 318, There must be produced with such oaths the accounts ff 0^™ and vouchers necessary to prove the debts referred to in such Accounts oaths. (Ibid., s. 21 and 49.) and vouch- g^g r^^^ Creditor will not lose his qualification by such acci- LoBs of dents as the destruction of his oath or vouchers by fire whUe in oaths, &c. possession of the trustee. (Ibid., s. 49, note f, postea.) Vouchers .320. And although the creditor has borrowed up the vouchers ^onowe ^^ j^.^ ^^I^j.^ j^g ^jjj ^j..^ ^^ permitted to act. (Ibid., s. 49, note f, postea.) Where 321. But where a claim is once found bad by a final inter- fiSbad! locutor, it will not again support a vote. (Ibid., s. 21, note g, postea.) As to sufiiciency of accounts and vouchers, vide ibid., s. 49, note i, postea. Claim may 322. Notwithstanding that the accounts and vouchers so pro- be cut down, ^i^^g^ are prima facie sufficient to support the claim of the creditor in terms of the Statute, still they may be cut down. Rules of evi- In petitioning, voting, and ranking, peculiar rules of evidence are peculiar^ followed, and the reason of this is that the inquiries themselves are peculiar. It is only in some cases that the sequestration process is the same as an ordinary law process where two parties are at issue — e.ff., the case of a bankrupt's application for dis- charge where an opposing creditor is allowed to establish his claims by reference to the bankrupt's oath (Campbell, 11th March 1856). In most cases they are inquiries in which various parties are concerned — the bankrupt, the creditors collectively or individually, and perhaps competing candidates for a trusteeship. In another respect these differ from ordinary litigations ; they require the most summary despatch. Under such circumstances, two rules have been introduced for such cases into the working Reference of all the Scquestratidji Acts. The first is, that a reference to *om*"tent °^''^ ^® incompetent ; the second is, that parole proof is also incom- Aiso parole petcnt except in rankings. " It is not the proper function of the proof, ex- review. (Act 1856, s. 71.) 449. The creditors, at the meeting for election of a trustee, fix Security by a sum for which the trustee shall find security for his intromis- '''"*''^' sions and performance of the duties and rules enacted by the Statute, and also decide on the sufficiency of the caution offered ; and the person declared to be trustee must forthwith lodge with Bond of the Sheriff Clerk a bond of caution, signed by the trustee and his ''^"'■""'' cautioner, in the form of the Schedule (C.) annexed to the Act, which bond is furnished to him by the Sheriff Clerk ; provided that nothing contained in the Act shall be held or construed to prevent the creditors accepting the bond of a guarantee society in lieu of the bond of caution aforesaid. (Ibid., s. 72.) 450. On the decision of the Sheriff being given declaring the Confima- person elected trustee, and on a bond by the trustee and his cautioner being duly lodged as aforesaid, the Sheriff confirms his election as trustee, which confirmation is final, and not subject to review in any court or in any manner whatever ; and the Sheriff Clerk issues an act and warrant, in the form of Schedule (D.) annexed to the Act, to the trustee, and the trustee immediately transmits a copy of such act and warrant to the accountant, who makes an entry of the name and designation of the trustee in the Register of Sequestration!?, and such act and warrant is an effec- tual title to the trustee to perform the duties imposed on him by the Statute, and is evidence of his right and title to the seques- trated estate for the purposes of the Act. (Ibid., s. 73.) (2.) Termination of Ms Office. 451. It does not appear that the trustee can resign office, but Termina- a majority in number and value of the creditors present at any trustee's meeting called for the purpose may accept of his resignation. °^^'°^- (Ibid., S. 74.) Eesigna- 452. A majority in number and value of the creditors present ^"^^^^j at any meeting diily called for the purpose, may remove the without yTi - 1 w J \ cause. trustee. (Ibid., s. 74.) 94 TREATISE ON TlEMINA- TioN or trustee's OFFICE. Kemoval on cause shown. Loses office if three months abroad. May be dis- missed where he keeps funds in his own hands. Also if he fails to make an- nual return. Mode of electing a new trus- tee, &c. Security^ Where bankrupt is discharged on a com- position, trustee is also dis- charged. 453. One-fourth of the creditors in value may at any time apply, by petition to the Lord Ordinary, for removal of the trustee, and the Lord Ordinary orders such petition to be served on the trustee, and intimated in the ' Edinburgh Gazette ; ' and if the Lord Ordinary shall be satisfied that sufficient reason has been shown, he removes the trustee, and appoints a meeting of the creditors to be held for devolving the estate on the trustee next in succession, or electing a new trustee. (Act 1 856, s. 74.) 454. The trustee subjects himself to the loss of his office by remaining at any one time for three months furth of Scotland. (Ibid.) 455. If the trustee keeps in his hands any sum exceeding £50 belonging to the estate for more than ten days, he may, unless it has been so kept from innocent causes, be dismissed from his office, upon petition to the Lord Ordinary or Sheriff by any cre- ditor. (Ibid., s. 83.) 456. Any trustee who shall fail to make the annual return, in the form of Schedule (H.) annexed to the Act, is subject to re- moval (Ibid., s. 158.) 457. If the trustee shall die, resign, or be removed, or remain at any time for three months furth of Scotland, any commissioner, or any creditor ranked or claiming and entitled to be ranked on the estate, may apply to the Sheriff for an order to hold a meet- ing for devolving the estate on the trustee next in succession, or electing a new trustee ; and the Sheriff grants warrant to hold such meeting, at a certain time and place, which, must be adver- tised in the ' Edinburgh Gazette ' by the commissioner or credi- tor so applying, and at the time and place so appointed, the credi- tors at such meeting may devolve the estate on the trustee next in succession, or elect a new trustee ; and when the estate is de- volved on such trustee, the creditors fix the amount for which he shall find security, and, on a bond being lodged, the Sheriff confirms him, and an act and warrant is issued and recorded in the same way and to the same effect as in the first election of a trustee ; and in all cases of a new election of a trustee, the pro- cedure takes place in the like manner as is provided in the case of the first election. (Ibid., s. 74.) 458. When the Lord Ordinary or Sheriff shaU pronounce a deliverance discharging the bankrupt on a composition contract, the sequestration ceases and is at an end, and the trustee exonered and discharged, but nevertheless the trustee and his cautioner is SEQUESTRATIONS. 95 liable, on petition to the Lord Ordinary or Sheriff by the bank- Tbrmina- rupt or his cautioner, to account for his intromissions and other titostiL's acts as trustee. (Act 1856, s. 142.) office. 459. After a final division of the funds, the trustee calls a Application meetmg of the creditors by an advertisement in the ' Edinburgh „"„ '' on ' Gazette,' to be held not sooner than twenty-one days after such wmlng-up publication, specifying the time, place, and purpose of holding the meeting, and by letters addressed by post to every creditor who has produced an oath as aforesaid, to consider as to an application for his discharge, and at such meeting he lays before the creditors the sederunt-book and accounts, with a list of un- claimed dividends, and the creditors may then declare their opinion of his conduct as trustee, and he may thereafter apply to the Lord Ordinary or the Sheriff, who, on advising the petition, with the minutes of the meeting, and hearing any creditor, may pronounce or refuse decree of exoneration and discharge ; and an extract of such decree, signed by the Clerk of the Bills or the Sheriff Clerk, is to be forthwith transmitted to the accountant, and entered in the Eegister of Sequestrations, and the bond of caution for the trustee delivered up. (Ibid., s. 152.) 460. Every trustee in any sequestration must, before his dis- Transmits charge, transmit the sederunt-book to the accountant, who there- book™ ac- upon directs the trustee to deposit the unclaimed dividends in ™i«it=int. the same bank in which money received by him was lodged dividends'^ under the provisions of the Act, and the trustee forthwith trans- ?" ^ lodged fers the whole dividends not then claimed to such bank, to be there entered in an account to be kept under the title of " Account of Unclaimed Dividends." (Ibid., s. 153.) (3.) Evidence of Trustee's Appointment. 461. The act and warrant of confirmation is an effectual Evidenob title to the trustee to perform the duties imposed on him by °ee™ap- the Statute, and is evidence of his right and title to the seques- ^ointment. trated estate for the purposes of the Act ; and a copy of such Act and act and warrant in favour of the trustee, purporting to be cer- ™'^™° ■ tified by the Sheriff Clerk, and to be authenticated by one of cated copy. the Judges of the Court of Session, is to be received in all courts and places within England, Ireland, and Her Majesty's other dominions, as prima facie evidence of the title of the trustee, without proof of the authenticity of the signatures or of the 96 TREATISE ON Evidence official character of tlie persons signing, and entitles the trustee ™e™ap- to recover any property belonging or debt due to the bankrupt, poiNTMENT. and to maintain actions in the same way as the bankrupt might have done if his estate had not been sequestrated. (Act 1856, Act and S. 73.) m^y b°' 4-62. The act and warrant may either be printed or in writ- printed, iug^ or partly both. (Ibid., s. 175.) (4.) Trustee's Bight of Property in Estate. Trustee's 463. The nature of the trustee's right in the sequestrated EROPEETT. estate appears to be as follows : 1. A real right so far as move- _ '~~ ables are concerned ; 2. A personal right so far as concerns Personal heritages, ships, and incorporeal subjects. Nevertheless, the trus- tee's right is not so pre-eminent a right as that of a purchaser ; for, in the first place, the fraud of the bankrupt can be pleaded against him (1 B. C. 289 ; Watt, 20th Feb. 1846) ; and, in the second place, a purchaser of goods without possession is prefer- able to him (19 & 20 Yict. c. 60 ; Act 1857, s. 1). Vested tan- 464. The trustee is vested with the bankrupt's property tan- with bank> ^w^ ^t tale as it stood in his person at the date of the seques- nipt's right, tration, with the exception of property held by a registered title, which species of property he takes tantum et tale as it stands on the record. ( Vide infra') Where a 465. If the subjccts, whether lands, leases, ships, or incor- regi^itere poreal rights, are held by a title placed on any of the public registers, then the trustee takes them subject to all burdens appearing on the register. (Act 1856, s. 102.) If bank- 466. If the right in the bankrupt be a personal right to lands, personaif then aU qualifications in the right itself, or conditions in a back- bond, or obligations in a letter of trust or mortgage, so long as the right is unrecorded, limits or cuts out the trustee's right. (1 B.C. 283 ; Mmond, 16th Nov. 1855 ; Aff., 26th Feb. 1858.) Moveables. 467. If the subject be moveable, whether debts (1 B. C. 284), or shares in a trading company (2 B. C. 286), or corporeal moveables (2 B. C. 287), then the trustee takes it subject to all securities and latent rights. Trustee 468. If the subjcct, whether heritable or moveable, be vested irabliities in the bankrupt in virtue of a contract, then the trustee, in iLef '*'" 'Adopting the contract, takes up the rights as well as the liabili- ties of the bankrupt, and in none of these cases does he take up SEQUESTRATIONS. 97 any higher or other right than the bankrupt had (2 B. C. 404 ; Trustee's Guthil, 21st Nov. 1818 ; Kirkland, I7th May 1831 ; Lindsmj, Xpertt. 9th Dec. 1841 ; Littlejohn, 13th Dec. 1855 ; Dundas, 4th Dec. — 1857). But of course it is entirely optional with the trustee, whether he take it up or reject it (2 B. C. 413). (5.) How Trustee's Right completed. 469. In certain cases a form of procedure is necessary for the How teup- completion of the trustee's investiture, sometimes to enable him kioht com- to sell and sometimes to enable him to compete with the rights ^^'^™°- of third parties. In the case of ordinary moveable rights his Moveable title is complete, for by the Statute his act and warrant is declared "^ equivalent to actual delivery, possession, or intimation as at its date. These rights, therefore, he takes up and uses or disposes as he thinks proper ; but in regard to heritages, ships, incorporeal rights, and subsequent acquisitions, the case is different. ( Vide Act 1856, s. 102.) 470. If the subject be heritage, the trustee may no doubt Heritable sell without making up a feudal title (Act 1856, s. 105) ; but to p^p*"^'!- enable him to compete with a disponee or bondholder who may not have completed their title, it will be necessary for the trustee to make up a legal title and have it put upon the record, as, if the disponee or bondholder has his title first completed, the trustee's right is cut out. This was the law under the same clause in 54 Geo. III. c. 1-37, s. 29 {Cormach, 8th July 1829) ; and s. 102 of Act 1856, which professes to define the extent of the trustee's right, does not make it equivalent to infeftment. {Vide BeU's Com. on 2 & 3 Vict. c. 41, p. 1 68. Melville, 1st June 1842.) 471. If the property be a ship, or the share of a ship, the trustee Shipping must, in terms of the Merchant Shipping Act 1854, s. 58, P™P''">- make a declaration and statement of his title, and produce evi- dence thereof, in order to get himself registered as owner of the ship or share. Directions and forms are given in that Act, s. 59, 60, and 61 ; and also in s. 74 and 75 as to mortgages. As there is, by s. 102 of Act 1856, no vesting of ships or shares to the same effect as if registration had taken place, it would appear that a purchaser or mortgagee will cut out the trustee, even after sequestration, if his title is first registered. 472. Where the property is a patent right, the trustee must Patentg. complete his title in terms of the Act 15 & 16 Vict. c. 83, G 98 TREATISE ON HowTEus- s. 35 ; and where it is the copyright of a design, he does so in EIGHT COM- terms of 5 & 6 Vict. c. 100, s. 6 ; in both cases, by obtaining PLETED. g^ entry of his right made in the registers applicable to these Copyrights, two different species of property. Eeai estate 473. If the estate is in any other of Her Majesty's dominions jestyWhCT than Scotland, and is a real estate, the trustee registers, enrols, dominions, ^j. j-ecords his act and warrant in the way that a deed or con- veyance would by the laws of the place require to be done ; and furthermore, as regards all freehold, copyhold, and leaisehold estate within such dominions, it is necessary that the act and warrant shall be registered in the chief Court of Bankruptcy for the country in which the property is situated (Act 1856, s. 102). If moveable. But if it is moveable, the act and warrant will be recognised as a sufficient title ; and if necessary, the trustee may get aid from the Scotch courts, such as in the case of Lindsay, 10th July 1840, where a creditor in Scotland was interdicted from follow- ing out diligence in London against a portion of the estate situated there. Where in 474. If elsewhere abroad, the trustee must seek aid from the rei^couu- l^ws of the place to enforce the right his act and warrant gives tries. him to the bankrupt's property " wherever situated " (2 B. C. 406), so far as moveables are concerned. But in reference to heritage abroad, he must cause the bankrupt to grant the neces- sary deeds according to the laws of the country where the heri- tage is situated (Act 1856, s. 81 and 105), or he must institute proceedings on behalf of the creditors in the courts of that country for the purpose of attaching the subjects. Subsequent 475. If the estate was acquired or succeeded to by the bank- acquisitions. ^^^^ subsequent to the sequestration, it falls under the sequestra- tion, and the trustee applies to the Lord Ordinary to declare it transferred to and vested in him for the creditors, and in this way acquires a real right to the estate. (Ibid., s. 29 and 103.) (6.) Trustee's Right in Competition with other Eights. BIGHT IN 476. In competition with a dispones or a bondholder, or any T°o™TH °^^^^ P^''*y folding a feudal title, the trustee will only be pre- OTHEB ferred if his title is first upon the record. (Vide suvra.) — ■ 477. If the estate is under an effectual adjudication, he takes Disposition. .^ f^j, ^jjg creditors generally where the sequestration is within tion" '°* year and day of the adjudication (ibid., s. 107). Where the SEQUESTEATI0N3. 99 adjudication is prior to that period, lie would take the estate Trustee's subject to the adjudger's preferable right if it has been completed oompeti'? by sasine ; while, on the other hand, if he completes his own title ^^ with /.,,.,, IT, OTHER nrst, ne will cut out the adjudger. eights. 478. If the property is under inhibition, he makes up his title, inhiwtion. or sells, and the inhibition has no effect except in the rankings. (Act 1856, s. 102 and 105.) 479. If the right is the tenant's right in a leasehold subject^ Assignation and the competition arises with an assignee, then, in the first righThTa^ place, in the case of leases registered under the Act 20 & 21 '^'^°- Vict. c. 26, the trustee will only be preferred if his title is first on the register ; and, in the second place, in cases of unregistered leases, if the assignation has been followed by intimation, but without possession, then, as the trustee's right has the same effect as if possession had been obtained, he would seem entitled to be preferred to the assignee (Act 1856, s. 102), for, while intimation to the landlord by one of two assignees entitles the first to pos- session (Inglis, 2Gth Feb. 1829), yet it is possession alone which gives the real right (1 B. C. 66 and 67; Brock, 29th Nov. 1822, and 5th March 1830, affi 23d Sep. 1831 ; 5 W. S. 476 ; Russell, 3d Dec. 1823, and 3d July 1827, aff. 4th AprU 1831 ; 5 W. S. 256) ; hut, in the third place, if the assignation has been followed by possession, the trustee is plainly cut out of all right to the lease (1 B. C. 66). 480. If the right is the landlord's right in a lease — viz., the Assignation right to the rents — then, in competing with an assignee, the right in a trustee will be preferred if the assignation was not intimated '^'^°- prior to the trustee's right ; but if intimated, then the assignee is to be preferred. In that case, the trustee must complete his right by sasine, and take the position of a singular successor, and in that capacity his real right to the lands will cut out the personal right of the assignee. {Vide supra.) 481. In the case of shipping property, the trustee will only Vendition, be preferred to a vendee or mortgagee in the event of his getting ping°pro-'^ himself first registered in terms of the Merchant Shipping Act. P^'^^- 482. If it be a patent right or a copyright of a design, the Of patents, rule is the same as in the case of shipping property. 483. If the assets are under arrestment or poinding, or poind- Diligence. inc of the ground or decree of mails and duties, he takes them for the creditors generally where the arrestment or poinding was within sixty days of the sequestration (Act 1856, s. 108). Also, 100 TREATISE ON Trustee's where the poinding of the ground was not carried into execution coMPETi^ by sale sixty days before sequestration, or the decree of mails TioN WITH aji(j duties was not followed by a charge also sixty days before EIGHTS. sequestration (Act 1856, s. 118); but a heritable creditor may after sequestration obtain poinding of the ground or decree of mails and duties for three half-years' interest (ibid.) Assignation 484. In competition with the assignee of a debt, the trustee, by virtue of his act and warrant, which is declared equivalent to intimation, will be preferred, if the assignee's right has not been completed by intimation prior to the bankruptcy. (Ibid., s. 102.) Partyciaim- 485. In Competition with a party claiming a right to goods, mg goo s. ^^^ trustee, by virtue of his act and warrant, which is declared equivalent to actual delivery or possession, will take the goods, provided that party has not had his right completed by possession (i.e., actual or constructive possession, and not symbolical possession, though followed by an instrument of possession, Roberts, 28th July 1 842), with the exception that a Purchaser, purchaser of goods without delivery wUl, under the Mercantile Amendment Act, 19 & 20 Vict. c. 60, s. 1, be preferred to the trustee. Purchase 486. As to purchasers of the estate from the bankrupt after tration'^"^^' scquestratiou, it is to be observed — first, that in the case of a bona fide purchaser, who is in possession of moveable effects re- ceived from the bankrupt after sequestration, but in ignorance thereof, and, when ignorant thereof, for a price paid, or which he is ready to pay, he shall not be obliged to restore the eifects (Act 1856, s. Ill) ; secondly, that no purchaser for valuable con- sideration of any freehold, copyhold, or leasehold estate situated in any of Her Majesty's dominions except Scotland, shall be affected by the bankruptcy until the trustee's act and warrant be registered in the chief court of bankruptcy where the estate is situated (ibid., s. 102) ; and, thirdly, that if any purchase is made of any estate so situated by any person, for valuable considera- tion, and without notice of the sequestration prior to such further registration, enrolment, or recording, as shall be necessary by the laws of the place where the estate is situated, such purchase shall not be invalidated by the existence of such act and warrant, or by the subsequent registration, enrolment, or recording thereof (ibid., s. 102). Latent 487. In competition with latent trusts or latent claims of any ciafms!" kind, the trustee is preferred in all cases of property with a re- SEQUESTRATIONS. ] 0] gistered title (1 B. C. 283), such as heritage (Duncan, 8th Dec. Trustee's 1803), or a heritable bond (Jeffrey. 15th May 1885 ; 1 S. & commt^ M. 767), or shipping property (M' Arthur, 20th June 1844) ; but ™n with not in the case of ordinary personal or moveable subjects, such EioHia. as an interest in a trading company (Gordon, 5th Feb. 1 824.) 488. In competition with the law-agent's lien over titles, the Lien of trustee is entitled ante omnia to the custody of the documents, '""'""S™'- reserving the agent's claim in the ranking (Johnston, 23d Jan. 1823 ; Paul, 2d Feb. 1826) ; but where the trustee has in any case received titles from a law-agent subject to his lien, he is bound to give effect to the preference in the ranking, and cannot free himself of liability by returning the deeds (Renny, 8th Feb. 1847). (7.) Trustees Right of Management where no Right of Property. 489. In certain cases the trustee, without reference to rights Tbustee's of property, has a preferable right to the management of the manage- estate in whole or in part. 1. Where the estate is under the ' ^'"'- administration of trustees, by virtue of a trust-deed for behoof Where of the creditors, thes^ trustees must denude in favour of the a trust-deed trustee under the sequestration, reserving all claims of preference toJs"'^^'''" or security acquired under the trust-deed (Broughton, 2d July 1812 ; A. B., 21st Nov. 1829). 2. If the estate of a deceased Or under debtor is under the management of heir.s, trustees, executors, ^^*_°"'°''^» executors-creditors, or successors of any kind, they must also denude (Act 1856, s. 29, 106,110). 3. A heritable creditor Heritable cannot interfere with the trustee's management, if the latter '='^^'^''<"'- begin proceedings first with a view to a sale (ibid., s. 134). 4. If a fund is under an effectual arrestment such as the seques- Arrestment, tration cannot cut down, still the trustee is entitled to it, subject to a claim of preference by the arrester in the ranking (Lind- say, 10th July 1840; Gordon, 12th Jan. 1842 ; Brown, 1st Feb. 1849). 5. If the sequestration is prior in date to an English English commission of bankruptcy, the trustee will be preferred (Geddes, of"™^."'" 4th June 1824) ; but a colonial commission of bankruptcy held luptcy. to carry the estate from the trustee if first in date, when the as- signee claims it (Stewart, 1 0th July 1851). 6. But the trustee where has no right of management over property held by the bankrupt ho?ds p?o- qua executor, or the Hke (Act 1856, s. 102, note e, postea). I^^IZ^^ 102 , TKEATISB ON (8.) Powers of Trustee. Trustee's 490. The trustee occupies a peculiar position ; he is at once TOWERS, ^jjg representative of both creditors and bankrupt, but in dif- Positionof ferent senses; i.e., 1. He represents the creditors — not in their individual capacity of creditors, for he is not assignee of their claims — nor altogether in their corporate capacity, for they re- tain the power to award protection or discharge to the bank- rupt — rbut he represents them in the fiduciary character of trustee in having a right to the estate for their behoof, and as their organ in a corporate capacity in the exercise of certain statutory powers under the seqiiestration. 2. And he also re- presents the bankrupt, not in his liabilities or in his general powers and duties, but in his rights of property and power to sue thereanent. (2 B. C. 379 ; Act 1856, s. 73, 102.) His power 491. The trustee has power to bind the estate, and the interest estatetnl °^ *^® Creditors and bankrupt therein, where he acts within the the credi- Statute ; but if he goes beyond the Statute, then he binds those creditors under whose special authority he acts, or himself per- sonally where he acts without authority {Kirldand, 9th March 1838) ; and as he can bind the estate, so he can bind a subse- quent trustee thereon {Davidson, 14th Dec. 1826). May set 492. The trustee is entitled to set aside any deed made void ferencer' ^^ ^^ Statute, and all alienations of property by the bankrupt &c. while insolvent or notour bankrupt which are voidable by Statute or at common law, and that for behoof of the whole body of creditors ; and in so doing he may take the benefit of any presumption which would have been competent to any creditor. (Act 1856, s. 11.) Mayconsent 493. The trustee may, along with the commissioners, consent maktn^a"^' to the bankrupt making a new application for liberation from newappU- prison whcre a former application has been refused. (Ibid., liberation. S. 45.) No relief 494. The trustce has no relief in respect of any payment made d?to°s^for™ to the agent or other person employed by him for money ad- expenses, vanced, or expense incurred, or remuneration, in relation to the affairs of the estate, against any creditor who has merely lodged an oath and claim, or has been ranked or received payment of a dividend or appeared or voted at a meeting, but reserving his relief against the estate, or against those creditors or others who may on other grounds be liable in relief. (Ibid., s. 57.) SEQUESTRATIONS. 103 495. The trustee may, with consent of the commissioners, within Trustee's two months after an oath, specifying the value of a security, ob- """Z^'" bligation, or claim, has been used in voting, or assenting to or May de- dissenting from the bankrupt's composition or discharge, re- nation of^' quire from the creditor, at the expense of the estate, a convey- from"cr«ii- ance thereof on payment of the value, and 20 per centum thereon. '"? 'Js™ /Ax ir.Mrt rt^ X valued for (Act 1856, s. 62.) voting. 496. The trustee may, with said consent, also require, at the Also where expense of the estate, from any creditor who has in his oath, with ^rSg""' a view to a dividend, put a specified value on any security which he holds over any part of the estate, a conveyance of such se- curity on payment of said value out of the first of the common fund. (Ibid., s. 65.) 497. The trustee, by virtue of his act and warrant, is entitled May recover to perform the duties imposed upon him by the Statute ; and a lae!^' *"'^ copy of the act and warrant, purporting to be certified by the Sheriff Clerk, and to be authenticated by one of the judges of the Court of Session, entitles the trustee, in all courts and places in England, Ireland, and Her Majesty's other dominions, to recover any property belonging or debts due to the bankrupt, and to maintain actions in the same way as the bankrupt might have done if his estate had not been sequestrated. (Ibid., s. 73.) 498. Any succeeding or new trustee is vested with the powers New tms- provided with reference to former trustees. (Ibid., s. 74.) !ame Mwer. 499. The trustee, with concurrence of a majority of creditors May apply in value present at a regular meeting, and if the accountant in aiiowmce bankruptcy shall report in its favour, may apply to the Lord ^° ^^^^' Ordinary or the Court for a special allowance to be made to the bankrupt out of the estate. (Ibid, s. 78.) 500. The trustee may apply to the SheriflF to compel the bank- May apply rapt to give every information and assistance necessary to enable to compel the trustee to execute his duty, and also to grant any deed which ^f°^™J|gt.° may be requisite for the recovery or disposal of the estate, ance. (Ibid., s. 81.) 501. The trustee may apply for re-examination of the bank- May apply . , .^ r^r.\ forre-exam- rupt. (Ibid., S. 88.) ination of 502. He may also apply to the Lord Ordinary for warrant to '"'"'''■"?*• apprehend and transmit the bankrupt to the place of his exami- sion rf ^' nation when he is in any part of Great Britain and Ireland ex- •'»ni^r"P'- cept Scotland. (Ibid., s. 89.) 503. The trustee may at any time apply to the Sheriff to order 104 TREATISE ON Trustee's the examination of the bankrupt's wife, family, clerks, servants, powEBs. factors, law-agents, and others who can give information relative Examinaj- ^.^ ^he estate. (Act 1856, s. 90.) tion of other ^ ^ parties. 504 The trustee may apply to have the examination of the In open bankrupt and other parties in open court. (Ibid., s. 92.) May put all 505." The trustee may put any lawful question to the bank- lawful ques- rupt and any of such otlier persons, and also call on them to produce documents. (Ibid., s. 93.) May call 506. The trustee may at any time call a meeting of the ere- "'^"""^" ditors. (Ibid., s. 98.) Newacqui- 507. The trustee may examine the bankrupt as to any new acquisition or succession after the date of the sequestration and before the date of his discharge. (Ibid., s. 103.) Complete 508. The trustee may complete titles in his own person, whom ' ^'' failing in favour of his successor or in the person of the bank- rupt ; and he may, without making up any title in his person, grant conveyances of the heritable estate as the bankrupt might have done. (Ibid., s. 105.) Where sue- 509. The trustee may apply to the Lord Ordinary to have made'up^ transferred to and vested in him the heritable estate of a bank- title, rupt, where the sequestration is awarded after his death and his successor has made up a title. (Ibid., s. 106.) Saiebyheri- 510. The trustee may concur in a sale of the heritable estate table credi- ^y. ^^ heritable creditor in order to fortify the title. (Ibid., s. 112.) May sell 511. The trustee may sell the heritable estate with concur- Se"^ rence of the heritable creditor. (Ibid., s. 113.) Without 512. The trustee may by himself carry through a sale of the any concur- heritable estate, provided he does so in terms of a resolution of the creditors made before a heritable creditor having a power of sale shall have commenced proceedings for sale, or, if com- menced, have been unduly delayed. (Ibid., s. 114.) Sale by pri- 513. The trustee, with concurrence of a majority of the credi- sain. *'^' tors in number and value, and of the heritable creditors, if any, and of the accountant, may sell the heritable estate by private bargain, and on such terms and conditions as the parties may fix. (Ibid., s. 115.) Payment of 514. The trustee, with a report thereon by the accountant cia/ms^''''' ™ bankruptcy, and on cause shown, may apply to the Lord Ordinary or the Court for an interim warrant for payment of preferable claims out of the price of the heritable estate, or SEQUESTRATIONS. 105 to authorise an interim scheme of division out of the price. (Act Trustee's 1856,8.117.) ''°!:!^'- 515. The trustee cannot prevent the heritable creditor from Poinding of executing a poinding of the ground, or obtaining a decree of &c."" "' mails and duties for payment of three half-years' interest. (Ibid., s. 118.) 516. The trustee cannot purchase any estates. (Ibid., s. Cannot pur- - jj~ , "^ ^ ' chase estate. 517. The trustee, when adjudicating on the claims of creditors, May exam- may examine the bankrupt creditor, or any other party, on oath on^ath^^ relative thereto. (Ibid., s. 126.) 518. The trustee, with concurrence of commissioners, may Alteration apply for judicial authority to alter the periods for payment of fo/divi- * the dividends where the estate consists chiefly of land, and in any 'i^'"^'' other cases where it may be necessary. (Ibid., s. 135.) 519. The trustee may require the bankrupt to make an oath May require instead of a declaration prior to his discharge. (Ibid., s. 140.) take oath. " 520. The trustee may appeal against the deliverance of the Appeal commissioners fixing his remuneration, &c. (Ibid., s. l-il.) • commis- 521. The trustee may, upon the bankrupt's requisition, pre- J^™^"^'^ ^°- pare a report on his conduct at any time after his examination with Report on a view to his discharge without composition. (Ibid., s. 14-6.) the hank- 522. The trustee may retain the dividend of any creditor guilty duct. of misconduct in promoting the bankrupt's discharge, and may Ketention^ also raise legal proceedings against the creditor. (Ibid., s. 1 50.) dividend. 523. The trustee may apply to have bankrupt's discharge Bankrupt's annulled where he has been guilty of granting preferences, &c., annuUed! mth a view to procuring his discharge. (Ibid., s. 151.) 524. The trustee has the right of appeal in all cases. (Ibid., Right of s. 169, 170, 171, ] 72, and 173.) ^™^^'- 525. The trustee may, with consent of commissioners, com- Right to pound and transact, or refer to arbitration any questions which ^™P"'"°<'> may arise regarding the estate, or any demand or claim thereon. (Ibid., s. 176.) 526. The trustee may, with authority of a majority in value criminal of the creditors at a special meeting, and with concurrence of P^secution. the Lord Advocate, prosecute any party guilty of wilful false- Iiood in any oath. (Ibid., s. 178.) 527. The trustee may apply to the Lord Ordinary or Sherifl' Opening of for an order to the eflect that, for a period not exceeding three leuer™'"'^ months from the date of the order, all letters addressed to the 106 TREATISE ON Trustee's bankrupt shall be delivered by the postmaster-general, or the __ ■ officers acting under him, to the Sheriff Clerk or the trustee, to be opened in presence of the Sheriff. (Act 1856, s. 179.) Power to 528. Finally, the trustee has power to do all the duties im- neraTdufres. po^ed upon him by the Statute ; for the imposition of a duty, as a matter of course, implies a legal power to doit. (Vide Duties, infra.) (9.) Duties of Trustee. Trustee's 529. The trustee, out of the first of the funds which come into uKEs. j^jig jj^jj(jg^ p^yg ^jjg petitioning or concurring creditor the expense To pay ex- of obtaining the sequestration, &c. (Ibid., s. 41.) obtaining 530. The trustce applies to the Sheriff for personal protection sequea ra- ^^ ^-^^ bankrupt wheucver the creditors shall vote it. (Ibid., To apply for S. 44.) protection. ^^^- ^^^ trustee reccivcs productions from the creditors of To receive their oaths and grounds of debt. (Ibid., s. 49.) ?y"c"editor5. ^^^^ ^he trustee thereupon marks the oaths and grounds of To make debt with his initials, and makes an entry thereof in the sede- sederunt- Tunt-book, aud of the date when the same were produced, and, book, and if required, he returns to the creditors the grounds of debt. return pro- ,-,,., -„> ductionsto (Ibid., S. 50.) creditors. ggg rjij^g trustec sets apart a dividend for any creditor who is dividend uot iu posscssion of his accounts and vouchers previously to the ditor noUn P^nod assigned for lodging claims with a view to a dividend, possession and who shall state in his oath the cause of the same not being of vouclicrs ^^ ' produced, and in whose hands, to the best of his knowledge, they are, till a reasonable time be afforded for production^thereof, or for otherwise establishing his debt according to law. (Ibid., s. 50.) To correct 534. The trustee is to call on any creditor, or his agent or creditor's^ mandatory, to rectify any oath which shall appear to him to be not framed in the manner required by the Act, unless it shall appear that this was done for some improper or fraudulent pur- poses, or that injury can be qualified by the other creditors, or any of them, in respect thereof. (Ibid., s. 51.) To value 535. The trustee, on application by a creditor whose claim ciTim^f °' depends upon a contingency which is unascertained at the date of lodging his claim, puts a value thereon as at the date of such valuation. (Ibid., s. 53.) 536. The trustee, on application by^ creditor whose claim is SEQUESTRATIONS. 107 made in respect of an annuity granted by the bankrupt, puts a Trustee's value on the annuity ; regard being had to the original price ^^™- given for the annuity, deducting therefrom such diminution in To value the value of the annuity as shall have been caused by the lapse """"" ^' of time since the grant thereof to the date of the sequestration. (Act 1856, s. 5-1.) 537. The trustee on the estate of a partner, before ranking a To value company creditor who claims on the partner's estate, puts a ^J,^" ™y valuation on the estate of the company, and deducts from the ^^^^' ™'i claim of such creditor such estimated value and ranks and pays claim on him a dividend only on the balance. (Ibid., s. 66.) Is^tt' 538. A succeeding or new trustee performs the duties prescribed Duties of by the Statute for the preceding trustee, and calls to account the "^"^ '™stee. former trustee, or his heirs or representatives. (Ibid., s. 74.) 539. The trustee, on receiving intimation of the recall of a To record mandate from a creditor to a party who has been elected a com- Mandates missioner, records the same in the sederunt-book ; and in all ™ r DUKE. value on such debt, and the Sheriff puts a value thereon as at ^ . the date of such valuation ; and when such application is made toZ'™""" to the Sheriff, notice thereof is given to the bankrupt and ™"im ^™'' petitioning or concurring creditor. (Act 1856, s. 53, and notes, valued. postea.) 769. A creditor in respect of an annuity granted by the bank- Appiicatioa rupt may, if the trustee has not been elected, apply to the Sheriff till^'tn to put a value on such annuity, and the Sheriff puts a value on the ^"''"''y- annuity, regard being had to the original price given for the an- nuity, deducting therefrom such diminution in the value of the annuity as shall have been caused by the lapse of time since the grant thereof to the date of the sequestration ; and when such ap- plication is made to the Sheriff, notice thereof is given to the bank- rupt and the petitioning and concurring creditor. (Ibid., s. 54.) 770. In no case do oaths of verity or credulity supersede pro- Effect of duction of legal evidence when required in any discussion before °*""'' the Sheriff (Ibid., s. 58.) 771. The Sheriff, by any deliverance awarding sequestration, Appoint- appoints a meeting of the creditors, to be held at a specified meeting for hour, on a specified day, being not earlier than six nor later than l^"'^ °^ twelve days from the date of the notice in the 'Edinburgh Gazette' of sequestration having been awarded, at a convenient place within the county, to elect a trustee or trustees in succes- sion, and do the other acts provided by the Statute (ibid., s. 67). The practice is, to fix the meeting to be held in a public place (ibid., s. 67, note e, postea). 772. If two or more creditors shall give notice to the Sheriff Attendance of the county, such Sheriff attends and presides at the meeting meeting. ^ and adjourned meeting for the election of trustee, and he directs the writing of the minutes, and signs the same. (Ibid., s. 68, and notes, postea.) 773. If the Sheriff be present at the election of trustee, and Procedure there be no competition for the office, or objection stated to the sheriff candidate or candidates, he, by a deliverance on the minutes, f^^™'- declares the person chosen by the creditors to be trustee, and if there be competition, or objections to the candidate or candidates, such objections to the votes or candidates must be stated at the meeting, and the Sheriff may either forthwith decide thereon, or 154 TREATISE ON Shebies make avizandum, and he, if necessary, makes a short note of the FOKMs OP objections and of the answers, on which he, within four days after pRooB- ^}-jg meeting, hears parties viva voce, and declares the person or — persons trustee or trustees in succession whom he shall find to have been duly elected, and states the grounds of his decision iu a note, and the same, as well as such short note, forms part of the process. (Act 1856, s. 69, and notes, postea.) Where not 774. Where the Sheriff is not present, then the preses reports presen . ^-^^ proceedings to the Sheriff, and if there be no competition or objection, he declares the person or persons elected trustee or trustees in succession ; but if ihSre be competition or objection, the Sheriff forthwith hears parties on their notes of objections viva voce, and gives his decision, and states the grounds thereof in a note, which note, as well as the notes of objections, forms part of the process. (Ibid., s. 70.) Judgment 775. The judgment of the Sheriff declaring the person or wit^ourde- psi'sons elected to be trustee or trustees in succession, is given lay. with the least possible delay. (Ibid., s. 71.) Coufirma- 776. On the decision of the Sheriff being given, declaring the tion of tius- person elected trustee, and on a bond by the trustee and his '<=«• cautioner being duly lodged as aforesaid, the Sheriff confirms his election as trustee. (Ibid., s. 73.) Application 777. If the trustce shall die, resign, or be removed or remain Idd meet" ^t any one time for three months furth of Scotland, any com- ingforeiec- missiouer, or any creditor ranked or claiming and entitled to be tionofnew ' j i i m «> trustee, &c. ranked on the estate, may apply to the Sheriff for an order to hold a meeting for devolving the estate on the trustee next in suc- cession or electing a new trustee, and the Sheriff grants warrant to hold such meeting at a certain time and place ; and if at said meeting the estate is devolved on such trustee, the creditors fix the amount for which he shall find security, and, on a bond being lodged, the Sheriff confirms him ; and in all cases of a new election of a trustee the procedure takes place in the like manner as is provided by the Act in the case of a first election. (Ibid., s. 7i, and notes, postea). Declaration 778. The Sheriff decides who are the persons duly elected as of election commissioners, and declares their election by a deliverance in the of commia- /ti • i i-r- \ sioners. scderuut-book. (Ibid., S. 7o.) Application 779. Where the creditors have duly voted to the bankrupt a ofVrotec™^ renewal of his personal protection, the trustee applies to the tion- Sheriff, who renews the same. (Ibid., s. 77.) SEQUESTRATIONS. 1 55 780. The bankrupt must at all times give every inforjnation Sheriff and assistance necessary to enable the trustee to execute his poR^g of duty ; and if the bankrupt fail to do so, or to grant any deed ^^°°^- which may be requisite for the recovery or disposal of his —^ estate, the trustee may apply to the Sheriff to compel him to to'^c^'omper give such information and assistance, and to grant such deeds, bankrupt to 11 CX6CQL0 under the penalty of imprisonment and of forfeiture of the deeds, &o. benefit of the Act, and unless cause be shown to the contrary, the Sheriff issues a warrant of imprisonment accordingly. (Act 1856, s. 81.) 781. In the case of the trustee unduly retaining the monies Dismissal of of the estate in his own hands, then, unless the money has been retention of so kept from innocent causes, the trustee falls to be dismissed ™'""'*^- from his office, upon petition to the Sheriff by any creditor, and has no claim to remuneration, and is Hable in expenses. (Ibid., s. 83.) 782. The judicial factor, the trustee, and commissioners are Petition amenable to the Sheriff, although resident beyond the territory tS'.'&c. fo'r" of the Sheriff, at the instance of any party interested, to account accounting. for their intromissions and management, by petition served on them ; and in case it shall appear that such application ought not to have been made, the party complained of is entitled to his fuU expenses, to be either retained out of the funds, or re- covered from the party complaining, as the Sheriff shall direct. (Ibid., s. 86.) 783. The trustee, within eight days after the date of the act siierifffixes and warrant confirming him, applies to the Sheriff to name a ^^^^ (,™ day for the public examination of the bankrupt, and the Sheriff ainination, issues his warrant for the bankrupt to attend for such examina- tion within the Sheriff Court House on a specified day and at a specified hour, being not sooner than seven days nor later than fourteen days from the date of the Sheriff's warrant. (Ibid., s. 87.) 784. It is competent for the Sheriff to grant a warrant to Apprehcn- apprehend the bankrupt, and bring him before the Sheriff for exa- rupt for exa- mination ; and if the bankrupt be imprisoned for a debt or other ^'nation, civU obligation within Scotland, the Sheriff may grant warrant to magistrates and gaolers, on receiving a duplicate of such warrant, and an acknowledgment for the person of the bankrupt, to deliver him to the officer presenting the same, and they must do so accordingly ; and the Sheriff may also grant warrant to 156 TREATISE ON Shekiff bring the bankrupt from the sanctuary ; and if the bankrupt Court DUEE. FORMS OP cannot be brought from gaol or the sanctuary, or cannot be exa- pRooE- mined by the Sheriff there, or is by a lawful cause prevented from attending at the time and place appointed, or is in custody on a criminal charge, or is abroad, the Sheriff may grant com- mission to take the examination ; and the Sheriff or commis- sioner may, if he see cause, adjourn the examination of the bankrupt to an early day, to be then fixed ; and the Sheriff may, on the application of the trustee, order the bankrupt to be exa- mined as often as he shall see fit. (Act 1856, s. 88.) Examina- 785. The Sheriff may, at any time, on the application of the parties.' "^ trustee, order an examination of the bankrupt's wife and family, clerks, servants, factors, law-agents, and others, who can give infor- mation relative to his estate, on oath, and issue his warrant re- quiring such persons to appear ; and if they refuse or neglect to appear, when duly summoned, the Sheriff may issue another war- rant to apprehend the person so failing to appear : Provided that when such person is not the bankrupt, nor his wife, nor one of his family, nor his clerk or servant, no warrant for appre- hension can be issued until the expiration of eight days from the service of the first warrant, unless the trustee shall, on oath, specify a reasonable cause of belief that such person intends to leave the country to avoid the examination, in which case the Sheriff may forthwith issue such warrant ; which several warrants are sufiicient to authorise messengers-at-arms, or the officers of the Sheriff, to execute the same, either within or without the territory of the Sheriff in Scotland as aforesaid ; and if any per- son liable to be examined cannot attend, the Sheriff may grant commission to take his examination ; and such examination, whether by the Sheriff or by a commissioner, may be ad- journed, if it shall seem fit, to an early day, to be then fixed : Provided that persons, other than the bankrupt, summoned to attend for examination are entitled to such allowances as wit- nesses are in other cases entitled to, and the amount of which, if disputed, is fixed by the Sheriff. (Ibid., s. 90, and notes, postea.) Bankrupt 786. The bankrupt and such other persons must answer all musunswer l^wful qucstions relating to the affairs of the bankrupt ; and the ill lawful Sheriff may order such persons to produce for inspection any jucs 10 . i^^^j^g jj£ account, papers, deeds, writings, or other documents in their custody relative to the bankrupt's affairs, and cause the SEQUESTRATIONS. 157 1856, s. 91, and notes, posiea.) ?°kms o. 787. The examination of the bankrupt, and of such other i'hoob- persons, is taken upon oath, and, except in the cases already — specified, wherein a commission is allowed to be granted, takes fr^t^lZ' place before the Sheriff, and the bankrupt's examination is taken and may be written or dictated by the Sheriff, and authenticated in the ordinary way as a regular deposition ; but notes of the evidence of such other persons are written by the Sheriff in the mode prescribed by the Act passed in the 16th and 17th year of the reign of her present Majesty, chapter 80, with regard to proofs in civil cases in the Sheriff Courts, except where it shall appear to him necessary to record and authenticate such evidence, in whole or in part, in the form of a regular deposition, and if the trustee make an application to that effect, the bankrupt and such other persons are examined in open court. (Ibid., s. 92, and notes, postea.) 788. If the bankrupt or any of such other persons refuse to Warrant of be sworn, or to answer, to the satisfaction of the Sheriff, any merTfor lawful question put to him by the Sheriff or trustee, or by any "■^f^^**- creditor with the sanction of the Sheriff, or without lawful cause refuse to sign his examination, or to produce books, deeds, or other documents in his custody or power relating to the estate, the Sheriff may grant warrant to commit him to prison, there to remain until he comply with the order, which warrant must specify the question and answer, book, deed, document, or the refusal to swear or to sign the examination. (Ibid., s. 93, and notes, postea.) 789. The Sheriff disposes of an application by any latent part- Application ner ofa sequestrated company to have it found that the omission pLtnCTof to acknowledge that he was a partner in due time proceeded * <='>"'P*°y- from innocent mistake, or ignorance of the proceedings, or rea- sonable misconception as to his liability as a partner. (Ibid., s. 94) 790. The Sheriff subscribes along vrith the bankrupt the state o»th ty of the bankrupt's affairs, with such additions and alterations thereon as he may have made before the close of his examination, and the bankrupt takes the statutory oath, which is engrossed in the sederunt-book, and subscribed as aforesaid relative to such state. (Ibid., s. 95.) As to form of oath, vide ibid., s. 95. 791. Where a heritable creditor, holding a security over the 158 TEEATISE ON Shebwp heritable estate, has sold the same, the trustee or any posterior roR^oF heritable creditor preferable to him may, by petition to the She- PEooB- j.;g'^ compel the said creditor and the purchaser to account for any -7-;^ reversion of the price. (Act 1856, s. 112, and notes, jjostea.) actounSng'^ 792. When a competent meetiug of creditors has passed the againstheri- necessary resolution, the trustee applies to the Sheriff for autho- tor. rity to make the first dividend at an earlier period than the Petition for expiration of six months from the date of the deliverance actu- of divi- ally awarding sequestration, but not earlier than four months ■^^ "■ from such date, if, upon cause shown, it shall be found expedient so to do, and also to accelerate the time for making the second and other dividends ; and when the Sheriff shall, upon such ap- plication, accelerate the first or any subsequent dividend, which he has power to do, he also makes the requisite provision for the acceleration of any other matters which he may find it necessary to accelerate in consequence thereof (Ibid., s. 133, and notes, postea.) Special ap- '^9^- ^^ cascs whcfc the sequestrated estate consists chiefly of plication for land, and in other cases where it may be necessary, it is compe- alteration of /^icn.rvi 'it-ii -i dividends, tent for the bherifl, on a special application by the trustee and commissioners, to authorise such alteration in the periods above mentioned for payment of dividends as shall be found most suitable to the circumstances of the case. (Ibid., s. 135.) Approval of '^9^. Where an offer of composition has been duly carried, and composi- ^jjg trustee has transmitted the necessary report, with the bond tract. of caution, to the Sheriff Clerk, that the approval of the Sheriff may be obtained thereto ; and if the Sheriff, after hearing any objections by creditors, shall find that the offer, with the secur- ity, has been duly made, and is reasonable, and has been assented to by a majority in number and nine-tenths in value of all the creditors assembled at the said meeting, he pronounces a deliver- ance approving thereof; provided that he hears any objection by opposing creditors ; and if he shall refuse to sustain the offer, or reject the vote of any creditor, he specifies the grounds of refusal or rejection. (Ibid., s. 138, 139, and 145, and notes, postea.) Declaration 795. On a deliverance being pronounced, approving of the rupt™''' composition, the bankrupt, or, if deceased, his successor or other party offering the composition, makes a declaration, or, if required by the trustee or any creditor, an oath, before the Sheriff, that he has made a full and fair surrender of his estate, and has not SEQUESTRATIONS. 159 granted or promised any preference or security, or made or pro- Sheriff mised any payment, or entered into any secret or collusive agree- pohms of ment or transaction, to obtain the concurrence of any creditor to ™oob- such offer and security ; and if the bankrupt shall be at the time — - beyond the jurisdiction of the Sheriff, or is by a lawful cause prevented from appearing before him, commission may be granted to any fit person to take such declaration or oath ; and Discharge. the Sheriff, on being satisfied with such oath or declaration, pro- nounces a deliverance discharging the bankrupt of all debts and obligations contracted by him, or for which he was liable at the date of the sequestration, and declares the sequestration to be at an end, and the bankrupt re-invested in his estate, reserving always the claims of the creditors for the said composition against him and the cautioner. (Act 1856, s. 140, and notes, postea.) 796. Before the Sheriff shaU pronounce the deliverance approv- Commis- ing of the composition, the commissioners audit the accounts of thTtrustee's the trustee and ascertain the balance due to or by him, and fix accounts . ,^_ Ti prior to the remuneration for his trouble and the expense attending the discharge. sequestration, and such remuneration must be paid or provided for to the satisfaction of the trustee and commissioners before such deliverance is pronounced. (Ibid., s. 141.) 797. Notwithstanding the deliverance discharging the bank- Trustee and nipt, the trustee and his cautioner are liable, on petition to the liaUe to Lord Ordinary or Sheriff by the bankrupt or his cautioner for ^ot^t^'."^' the composition, to account for his intromissions and other acts standing ex- „, . 1 -, dcx \ oneration. as trustee. (Ibid., s. 142.) 798. The bankrupt may, at any time after the meeting held Petition by after his examination, petition the Sheriff to be finally discharged foTdi™^ of all debts contracted by him before the date of the sequestra- '^^fs^ ^'*' .' ^ out compo- tion, if every creditor who has produced his oath concur in the sition. petition ; and he may also present such petition on the expira- tion of six months from the date of the deliverance actually awarding sequestration, if a majority in number and four-fifths in value of the creditors who have produced oaths concur in the petition ; and he may also present such petition on the expiration of twelve months from the date of such deliverance, provided a majority in number and two-thirds in value of the creditors con- cur in the petition ; and he may also present such petition on the expiration of eighteen months from said date, if a majority in number and value concur in the petition ; and he may also pre- 160 TREATISE ON Shebipi' Court FORMS OP PROCE- DURE. sent such a petition on the expiration of two years from said date actually awarding sequestration without any consents of creditors ; and the Sheriff, in each of these cases, orders the petition to be intimated in the ' Edinburgh Gazette ' and to each creditor; and if, at the distance of not less than twenty-one days from the publication of such intimation, and on evidence being produced of concurrence as aforesaid, where such concurrence is required, there be no appearance to oppose the same, the Sheriff pronounces a deliverance finding the bankrupt entitled to a dis- charge ; but if appearance be made by any of the creditors or by the trustee, the Sheriff judges of any objections against granting the discharge, and either finds the bankrupt entitled to his dis- charge, or refuses the discharge, or defers the consideration of the same for such period as he may think proper, and may annex such conditions thereto as the justice of the case may require, and may refuse the application for the discharge of any bank- rupt, although two years have elapsed from the date of the sequestration, and although no appearance or opposition shall be made by or on the part of any of the creditors, if it shall appear from the report of the Accountant ia Bankruptcy, or other sufficient evidence, that the bankrupt has fraudulently concealed any part of his estate or effects, or has wilfully failed to com- ply with any of the provisions of the Act : Provided that no discharge is granted to the bankrupt where, under the pro- visions of the Act, he is only entitled to apply for a decree of cessio ; and also, that it is not competent for the bank- rupt to present a petition for his discharge, or to obtain any consent of any creditor to such discharge, until the trustee shall have prepared a report with regard to the conduct of the bankrupt, and as to how far he has complied with the pro- visions of this Act, and, in particular, whether he has made a fair discovery and surrender of his estate, and whether he has attended the diets of examination, and whether he has been guilty of any collusion, and whether .his bankruptcy has arisen from innocent misfortunes or losses in business, or from cul- pable or undue conduct ; and such report may be prepared by the trustee, upon the requisition of the bankrupt, at any time after the bankrupt's examination, but cannot be demanded from the trustee till the expiration of five months from the date of the deliverance actually awarding sequestration ; and such report must be produced in the proceedings for the bankrupt's dis- OF SEQUESTEATIONS. ICl charge, and be referred to by its date, or by other direct refer- Sheruf ence, in any consent to his discharge. (Act 1856, s. 146, and joZs notes, postea ; also Act 1860, s. 3.) prooe- 799. If the bankrupt shall be found entitled to his discharge, — '- he makes a declaration, or, if required by the trustee or any ere- bi^'Lupt, ditor, an oath, before the Sheriff, that he has made a full and fair 2t^l\ ' surrender of his estate, and has not granted or promised any pre- Sheriff, ference or security, nor made or promised any payment, nor en- tered into any secret or coUusive agreement or transaction, to obtain the concurrence of any creditor to his discharge ; and if the bankrupt shall be at the time beyond the jurisdiction of the Sheriff, or is by lawful cause prevented from coming before the Sheriff, commission may be granted to any fit person to take such declaration or oath; and the Sheriff, on being satisfied with such declaration or oath, pronounces a deliverance discharging the bankrupt of all debts and obligations contracted by him or for which he was liable at the date of the sequestration. (Act 1856, s. 147, and notes, postea.) 800. The Sheriff may order such portion of the pay, half-pay. Order, as salary, emolument, or pension of any bankrupt, as, on communi- &c^™eiiig cation from the Sheriff to the Secretary of War, or the Lords P^''^, '" . , ^ ' trustee. Commissioners of the Admiralty, or the Commissioners of the Customs or Excise, or the chief officers of the department to which such bankrupt may belong or may have belonged, or under which such pay, half-pay, salary, emolument, or pension may be enjoyed by such bankrupt, or to the Court of Directors of the East India Company, they respectively may, under their hands, or under the hand of their respective chief secretary, or other chief oflScer for the time being, consent to in writing, to be paid to the trustee, in order that the same may be applied in payment of the debts of such bankrupt ; and such order and con- sent being lodged in the office of Her Majesty's Paymaster- General, or of the secretary of the said Court of Directors, or of any other officer or persons appointed to pay or paying any such half-pay, salary, emolument, or pension, such portion of the said pay, half-pay, salary, emolument, or pension, as shaU be speci- fied in such order and consent, is paid to such trustee until the Sheriff make order to the contrary. (Ibid., s. 149.) Proceedings 801. If, during the sequestration, any creditor shall have ob- df^Twhr tained any preference, gratuity, security, payment, or other con- has obtained sideration or promise thereof not sanctioned by the Act, or &c, L 162 TREATISE ON Sheriff COTJET FORMS OF PROCE- DURE. Application for trustee's discharge. Report of resolution by creditors that bank- rupt only to apply for decree of entered into any secret or collusive agreement or transaction for concurring in or facilitating or obtaining the bankrupt's dis- charge, the trustee is entitled to retain his dividend, and he or any creditor ranked on the estate may present a petition to the Sheriff, praying that such creditor shall be found to have for- feited his debt, and be ordained to pay to the trustee double the amount of the preference, gratuity, security, payment, or other consideration given, made, or promised, and if no cause be shown to the contrary, decree is pronounced accordingly ; and if the se- questration shall have been closed, it is competent to any credi- tor who shall not have received full payment of his debt to raise a multiplepoinding in name of the person who has obtained such preference, gratuity, security, payment, or other consideration or promise as aforesaid, and on the value of the preference, gratuity, or security, or amount of the sum paid or consideration obtained, being ascertained, double such value or amount, together with the amount of the debt of the colluding creditor, is to be ordered to be consigned by him, and divided among the creditors who were ranked or were entitled to be ranked in the sequestration, and have not received full payment of their debts, and who shall lodge claims in such multiplepoinding, according to their re- spective rights and interests. (Act 1856, s. 150.) 802. After the meeting called to consider as to an application for the trustee's discharge is held, the trustee may apply to the Sheriff, who, on advising the petition with the minutes of the meeting, and hearing any creditor, may pronounce or refuse decree of exoneration and discharge. (Ibid., s. 152, and notes, postea^ 803. Upon a resolution being passed at a competent meeting of creditors, that the bankrupt shall only be entitled to apply for and obtain a decree of cessio, and shall have no right to a dis- charge in the sequestration, the trustee, after giving eight days' previous notice to the bankrupt, may report such resolution to the Sheriff, who hears parties, if required, and decides with re- ference to the whole circumstances of the case, with or with- out a report from the accountant whether such resolution shall be confirmed or recalled ; and if such resolution shall be con- firmed, the bankrupt has no right to a discharge in the seques- tration, but is entitled to apply for a decree of cessio, and the Court has power to grant such decree in the sequestration, without requiring' the bankrupt to bring a separate process, SEQUESTRATIONS. 1 63 and in all other respects the sequestration proceeds in common Shebipf form. (Act 1856,8.168.) ^°ro. 804. During the dependence of appeals or petitions and com- ™°™" plaints, it is competent to the Sheriff to give such orders as may — be necessary to regulate the interim possession and administra- of3ori'm" tion of the estate. (Ibid., s. 172.) possession, 805. The Sheriff^ on cause shown, may order that for a order as to period not exceeding three months from the date of the order i>ankmpt's all letters addressed to the bankrupt shall be delivered by the Postmaster-General, or the officers acting imder him, to the Sheriff Clerk or trustee, to be opened in presence of the Sheriff, after written notice to the bankrupt to attend, if within Scotland ; and in case the letters shall relate in whole or in part to the estate, they are placed in such custody as the Sheriff may direct ; and the Sheriff may, on cause shown, renew such order for a like period as often as shall be necessary. (Ibid., s. ] 79, and notes, postea.) Sect. 11. — Of the Accoxjntant in Bankruptcy. (1.) Appointment. 806. It is lawful for Her Majesty, and her heirs and succes- Aoooukt- ANT IN sors, to appoint a person versant in law and accounts, to be bank- called " The Accountant in Bankruptcy," for performing the ^'™^- duties of that office, with such yearly salary, not exceeding Appoint- £850 per annum, payable quarterly out of any monies to be voted by Parliament for that purpose, and with such accommo- dation of office-rooms, or reasonable allowance for the same out of the said fund, as may be fixed by the Commissioners of Her Majesty's Treasury ; and the accountant is allowed three clerks, whom he appoints, with a salary not exceeding ,£150 yearly, which salaries are paid quarterly out of any monies to be voted by Parliament for that purpose ; and the accountant must hold Quaiifica- no other office appointed to by Government, and cannot, directly *"'°' or indirectly, by himself or any partner, be engaged in practice before the Supreme or any inferior Court ; and he cannot, directly or indirectly, have any management of or intromission with any money of any bankrupt estate under charge of the Court of Ses- sion or of any Sheriff Court, or constituting the fund in any process of sequestration. (Ibid., s. 156, postea.) 164 TREATISE ON Account- 807. In case of the illness or temporary absence of the ac- Bab^ countant, the Lord President of the Court of Session may autho- BUPTCT. rise any one of the accountant's clerks, or other qualified person, Temporary to discharge the duties of the office for the time. (Act 1856, appoint- o ICON ment in *■ '^"•-'■J case of ill- ness, &c. f2.'^ Functions of Accountant. His concnr- 808. The accountant may concur in a sale by private bargain sale of heri- ^ the heritable estate, and in fixing the terms and conditions of w'ri?ate* ^® regarding price or otherwise. (Ibid., s. 115.) bargain. 809. An extract of the deliverance dischargiag the bankrupt, ^^ f^ signed by the Clerk of the Bills or the Sheriff Clerk, on being discharge to transmitted to the accountant, is preserved by him with the iiyS^&c. copy of the proceedings in the sequestration transmitted to him, as provided by the Act, and an entry thereof is made by the accountant in the Eegister of Sequestrations. (Ibid., s. 140, 145, and 147.) Entry of 810. An extract of the decree of exoneration and discharge in (So£ge. favour of the trustee, on being transmitted to the accountant, is entered by him in the Eegister of Sequestrations. (Ibid., s. 152.) To direct Sll. Eveiy trustee in any sequestration, before his discharge, ^^^_^. transmits the sederunt-book to the accountant, who thereupon ;. 21, s. 4.) 2. The singular includes the plural, and the plural the singular ; and the male includes the female. (13 & 14 Vict. c. 21, 3. 4.) V. Periods of time in this Act shall be reckoned exclusive of Reckoning the day from which such period is directed to r-un (a). " ™®' (a) There is often much subtlety involved, and a great deal of ingenious speculation indulged in the computation of time. It arises from dealing with time, not by points or terms, but by periods or portions. It is usual in statutes to fix time by the day or week, and so on, and not by the arrival of such time-marks as sunrise or noon, and hence questions are perpetually arising, whether the day or week is to be excluded or included in the compu- tation — whether it is to be held as finished or merely begun. The above sec- tion puts an end to all such q^uestions imder the present Act. Thus, when paities, as in s. 69, are to lodge notes of objections wilhin four days, this is held to mean four free days — ^not counting the day from which the period runs, but beginning next day and njnning on till the end of the last hour of the fourth. Again, where, as in s. 70, the trustee remains for three, months furth of Scotland, he may be removed, this obviously means three whole months — not counting the day from which the period runs, as directed in the above section. Farther, where, as in s. 67, a meeting is to be held not earlier than six, and not later than twelve, days, this plainly means that six free days must elapse, and that twelve days must not elapse before the meeting is called ;■ as, where a day or a week is mentioned, it must be understood to mean a whole day or week — ^beginning, middle, and end — and therefore the meeting must not be called sooner than the end of the sixth, nor later than the end of the twelfth day, not including, in terms of the above section, the day from which the computation begins. Lastly, where, as in s. 83, the trustee is not to retain a certain sum in his hands /or more than ten days, this, by the above section, will mean that ten free days must expire ere the penalty attaches, not including the day on which the reckoning begins. Hitherto it has been difiicult to know, in certain cases of bankruptcy, whether the day of the bankruptcy or the date of the deed or diligence was to be excluded ; for it was always agreed that both were not to be included [Scott, infra). Professor Bell held, that the day from which the computation begins is not counted as a day, but that the sixty days therefrom expire the moment the sixtieth day begins (2 B. C. 179) ; but some hold that the day from which the computation begins, is counted as the first day, but that the sixtieth must be completed. Two cases may be cited. A bill was iud-orsed on the 31st March, and the notour bankruptcy took place on 30th May. It was held that the sixty days had expired. The words of the Act 1696, on which the action was raised, are, " either at or after his becoming bankrupt, or in the space of sixty days 214 ACT 1856, WITH NOTES. before " (Blailcie, 21st Jan. 1809, P. C). A poinding was executed on ISth August, and the notour bankruptcy took place on 14tli October. It was held that the sixty days had elapsed, and that the poinding was not reducible. This was decided under s. 5 of 54 Geo. III. c. 137, the words of which are, " within sixty days before the bankruptcy " (Scott, 7th Dec. 18.S9). The case of Blaikie will still stand good, for the above section does not apply to reductions under 1696. But the case of Scott is now a questionable decision ; for as by the aboTe section the day of the bankruptcy would not be counted a day, and therefore as the poinding was within sixty free days from that date — viz., on the 15th of August, which was the sixtieth day — it would now seem to be re- ducible. Thus the above section has the effect of adding a day to the statu- tory period in all such cases under this Act. Dates of VI. The date of a deed under tliis Act, or under the Act ^^^^^- passed in the Parliament of Scotland held in the year 1696, chapter .5, shall be the date of recording of the sasine, where sasine is requisite, and, in other cases, of registration of the deed, or of delivery, or of intimation, or of such other proceeding as shall in the particular case be requisite for rendering such deed completely effectual. Constitution and. Effects of Notour Bankruptcy. Notour VII. Notour bankruptcy shall be constituted by the following o?ffi"^ circumstances: duals. 1st. By sequestration, or by the issuing of au adjudication of bankruptcy in England or Ireland; or 2d. By insolvency, concurring either — A. With a duly executed charge for payment (a), followed, where imprisonment is competent, by imprisonment, or formal and regular apprehension of the debtor (J), or by his flight or absconding from diligence (c), or retreat to the Sanctuary, or forcible defending of his person against diligence, or where imprisonment is incompe- tent [d) or impossible (e), by execution of arrestment of any of the debtor's effects not loosed or discharged for fifteen days (/), or by execution of poinding of any of his moveables, or by decree of adjudication of any part of his heritable estate for payment or in security ; or B. With sale of any effects belonging to the debtor under a poinding [g), or under a sequestration for rent, or ■with his retiring to the Sanctuary for twenty-four hours (A), or with his making application for the benefit of cessio bonorum (i). (a) It is of no consequence what is the amount of the debt. It is enough that it is for a sum of money. In one case a caption for a debt, " deducting such sums as can be shown to b^paid" was sustained. (Taylor, Feb. 1819, 2 B. C. 170.) (6) 1. It is not necessary that the officer use the blazon or wand of peace. (ScoU, 18th Jan. 1855.) ACT 1856, WITH NOTES. 215 2. Imprisonment or apprehension may be proved by parole evidence; {Bichmond, 14th Jan. 1789, D. 1113; Scott, supra) but not the other requisites of notour bankruptcy ( Whyte, 20th March 1817, 1 Mur. 237). (c) 1. The proper evidence of the debtor's flight is an execution of search by the officer. A sentence of fugitatiou held not enough in Marshall, 11th Dec. 1834, as it proved his flight from a different cause than to avoid diligence for debt. 2. It is difficult to say what circumstances will amount to flight. One act of absence from home was held not enough [Finlay, 21.st Jan. 1767, D. 1106). In another case one search was held enough, where the insol- vency was notorious (Ferguson, 1771, D. 1109). In a third case, one ex- ecution of search was held sufficient evidence of absconding, unless redargued by other evidence (Carron Company, 4th July 1775, D. 1110). In another case it was observed that absence may be explained {Spedding, 9th August 1785, D. 1113). (d) This refers to — 1. Peers ; 2. Members of the House of Commons during the sitting of Parliament, and for forty days prior and subsequent to its meeting ; 3. Pupils ; 4. Lunatics ; 5. Wives, unless in business, and their husbands are abroad ; 6. Persons under protection of a decree of cessio ; 7. Debtors in the Abbey ; 8. Debtors in sums under £8, 6s. 8d. All such persons may of course be rendered notour bankrupt. (2 B. C. 166. ) (e) This means where the debtor is out of the country, or where it is an incorporation. (2 B. C. 167.) (/) The notour bankruptcy begins at the expiration of the fifteen days. (Brown, 1st Feb. 1849 ; vide s. 9.) (g) It seems enough that a sale take place under a Small Debt decree without a charge (which is unnecessary where the decree is in foro), while imprisonment under the same decree would not be an act of notour bank- ruptcy. (h) With reference to retiring to the Sanctuary [ inferring notour bank- ruptcy, it is to be remarked, that the retreat must continue for twenty-four hours, while under clause A it is enough that there simply be a retreat to the Sanctuary, which has been held to be sufficient, even although the debtor had not been entered in the clerk's book of the Abbey (Dickson, 3d Dec. 1751, D. 1101). The reason why retiring to the Sanctuary for twenty-four hours is sufficient, without charge on a diligence, seems to be, that as a debtor cannot remain in the Abbey under protection longer than twenty -four hours without booking, the act of booking is an act of so deliberate a nature, and so indubit- able in its meaning, that it may fairly justify sequestration. (i) It is to be regretted that the granting of a trust deed has not likewise been declared an act of notour bankruptcy ; for however singular it may be, it has been long held, that a conveyance of an insolvent's whole property to his creditors is not an act of notour bankruptcy. (Watson, 24th Feb. 1769, D. 1220.) VIII. Notour bankruptcy of a company shall be constituted of a com- either in any of the foregoing ways, or by any of the partners P™y- being rendered notour bankrupt for a company debt (a). (a) The word "company" includes bodies corporate, politic, or collegiate. 216 ACT 1856, WITH NOTES. and partnerships (s. 4). Where members of such bodies are not subject to imprisonment, then the notour bankruptcy must be constituted by any of the other alternatives {vide s. 7, note /). It has been held that an incor- poration could not be made notoiir bankrupt under the Act 1696, c. 5 {Shoemakers of Oanongate, 5th June 1797, D. 1210), nor under 54 Geo. III. c. 137 {Hogan, 19th Feb. 1853), but the above section will apply to incor- porations. Commence- IX. Notour bankruptcy shall be held to commence from the notour ti™e when its several requisites concur, and when it has once bankruptcy, been constituted shall continue, in case of a sequestration, till the debtor shall obtain his discbarge, and in other cases until insolvency cease (a), without prejudice to notour bankruptcy being anew constituted within suoh period (6). {a) Payment of the debt of the creditor who renders the debtor notour bankrupt, does not take away the effects of the notour bankruptcy {M'Kel- lar's Creditors, 1st March 1791, D. 1114, 2 B. C. ISO), except that it may prevent sequestration (s. 30, infra). (6) At first sight it might seem imnecessary to constitute notour bank- ruptcy of new while the debtor was still remaining in a state of notour bankruptcy ; but it will be observed, 1. That to equalise arrestments it is necessary that notoiu- bankruptcy be constituted within sixty days after the arrestment, or four months before it (s. 12, infra) ; 2. That the same is necessary in the case of poindings ; 3. That a sequestration can only be ap- plied for within four months of the date of the bankruptcy — obviously mean- ing its constitution (s. 15). The continued state of notour bankruptcy is, however, of use in the case of reducing preferences, for the Act 1696, c. 5, applies to deeds granted by the debtor, " either at or after his becoming bankrupt." It has accordingly been long ago held that a preference is re- ducible, although it has been granted some years after the constitution of bankruptcy, and that the debtor's incapacity still continues until he returns to a state of solvency. {M'Kellar's Creditors, supra. ) Deeds made X. Deeds made void by this Act (a), and all alienations of void by this property by a party insolvent or notour bankrupt, which are alienations voidable by statute or at common law, may be set aside either of property jjy ^ya,y of action or exception, and a decree setting aside the may^e^set deed by exception shall have the like effect, as to the party ob- aside by jecting to the deed, as if suoh decree were given in an action at tiol°kc!' liis instance (6). {a) The deeds here referred to seem to be those mentioned in s. Ill and 150. (6) The remedy of reduction, whether by action or exception, here given can now be followed out in the Sheriff Court ; for it is now enacted that ' ' the tenth section of the first herein-before recited Act shall be taken to apply to actions and exceptions as well in the ordinary Court of the Sheriff as in the Court of Session." (Act 1857, s. 9, postea.) May be by XI. The trustee on a sequestrated estate under this Act shall trustee. |jg entitled to set aside any such deed or alienation for behoof of ACT 1856, WITH NOTES. 217 the whole body of creditors (a), and in so doing shall be entitled to the benefit of any presumption which would have been com- petent to any creditor (b). (o) 1. Tkis means creditors entitled to beranlied, a. 121. 2. Eeductions of such deeds under the Statutes are only competent to those who are creditors prior to the granting of the deeds. In the case of gratuitous alienations under 1621, it has long ago been decided that posterior creditors have no title to reduce (Polloch's Creditors, 21st Jan. 1669, D. 1002 ; Ed- mond, 1st June 1853 ; E. 4. J. 44). In the case of preferences under 1696, it was likewise held that posterior creditors could not reduce {Man., 25th July 1702, D. 1006 ; Barclay, 19th Nov. 1783, F. C, 2 B. C. 209). A trustee under a sequestration has hitherto been entitled to prosecute svich reductions on be- half of those who were prior creditors, but not for those who were posterior (Mansfield, 13th Feb. 1833 ; fforne, 12th Feb. 1847 ; M'Cowan, 6th July 1852). By the above section it would appear that all the creditors, both prior and posterior to the deed under challenge, have now the same interest. (b) The presumptions to which the above section alludes appear to be those arising under 1621. "1. That in all challenges, after insolvency, of deeds granted to conjunct and confident persons subsequently to the challenger's debt, the insolvency shall, pretmrnptione juris, be carried back to the date of the deed ; and, 2. That in such cases it shall also be presumed that the deed was granted without value." (2 B. C. 183.) Pari passu Rariking of Diligence. XII. Arrestments and poindings which shall have been used Arrestments within sixty days (a) prior to the constitution (J) of notour bank- ?'"' P"""^' ruptcy (c), or within four months thereafter, shall be ranked pari passu as if they had all been used of the same date ; provided, that if such arrestments are used on the dependence of an action, or on an illiquid debt, they be followed up (d) without undue delay ; provided further, that any creditor judicially producing in a process (e) relative to the subject of such arrestment or poinding liquid (/) grounds of debt or decree of payment within such period shall be entitled to rank as if he had exe- cuted an arrestment or a poinding ; and in case the first or any subsequent arrester shall, in the mean time, obtain a decree of ' forthcoming and preference, and thereupon shall recover pay- ment, or a poinding creditor shall carry through a sale, he shall be accountable for the sum recovered to those who, by virtue of this Act, may be eventually found to have a right to a ranking pari passu thereon, and shall be liable to an action at their in- stance for payment to them proportionally {g), after allowing out of the fund the expense of recovering the same Qi) ; and if any arrestments be used for attaching the same effects after the period of four months subsequent to the bankruptcy, such arrestments shall not compete with those used within the said periods prior or subsequent thereto, but may rank with each other on any rever- sion of the fund attached, according to law and practice. 218 ACT 1856, WITH NOTES. (a) Vide s. 5, aa to computation of tlie sixty days. (J) 1. The power of acquiring preferences by such legal diligence again arises at the expiration of the four months from the constitution of notour bankruptcy ; but voluntary preferences under 1696 can never be so acquired, until the notour bankruptcy is removed by a return to solvency. {M'Kellar's Creditors, 1st March 1791, D. 1114.) 2. Vide s. 7 and 9 as to constitution of notour bankruptcy. (c) If the constitution of notour bankruptcy is by sequestration, the arrest- ments and poindings within sixty days are not effectual, and the trustee is entitled to the fund or effects or their proceeds. (S. 108.) {d) The arrestments so tised are to be followed up by proceedings to obtain decree. (Vide 54 Geo. III. c. 137, ». 2.) (e) This means a forthcoming, or process of poinding and sale, or a multiple- poinding. (/) A liquid ground of debt means a jjrobative writ — e. g., a b^nd orbiU. {Vide s. 14, note d.) {g) A multiplepoinding does not seem incompetent. {h) The " expense of recovering the same " appears limited to the expense of the poinding or arrestment, and not of the antecedent steps of process or diligence, which, although necessary to the final step, may have been raised for quite a different pmT^ioae than for arresting or poinding {nide s. 108 and 110, infra). It does not appear that the expenses of recovering the fund or pro- ceeds from the arresting or poinding creditor is provided for, though, if an action of multiplepoinding for dividing the fund were raised, the expense of it woiJd doubtless be allowed from the fund. There is no provision for pay- ment of the expenses of constituting the notoiu* bankruptcy to the creditor who incurred them. Sequestration, when competent. Sequestra- XIII. Sequestration may be awarded of the estate of any per- tion may be j^ u) jq the followina: Cases : awarded m ^' ^° ,. . ,. ,,- . . ,..,. cases hereiu 1st. iu the case 01 a living debtor (o) subject to the jurisdic- enumerated. tjo^ (•(,•) ^f the Supreme Courts of Scotland : A. On his own petition (d), with the concurrence of a cre- ditor or creditors (e), qualified as herein-after men- tioned (/) : B. On the petition of a creditor or creditors, qualified as herein -after mentioned, provided the debtor be notour bankrupt (jf), and have within a year (A) be- fore the date of the presentation of the petition re- sided or had a dwelling-house or place of business in Scotland ; or otherwise, in the case of a company (e) being notour bankrupt, as herein - before provided, if it have within such time carried on business in Scotland, and any partner have so resided or had a dwelling-house, or if the company have had a place of business in Scotland : ACT 1856, WITH NOTES. 219 2d. In the case of a deceased debtor who at the date of his Sequestra- death was subject to the jurisdiction Q) of the Supreme ''™J^^ '^°' Courts of Scotland : debtor. A. On the petition of a mandatory to whom he had granted a mandate to apply for sequestration : B. On the petition of a creditor or creditors qualified as herein-after mentioned. (a) By former Statutes tlie privilege of sequestration was confined to the trading classes, but it is now unlimited, and so any who can incur debt may now be sequestrated. Minors, lunatics, and wives, in certain eases, may all incur debt, and be rendered notour bankrupt (2 B. C. 700), and so are now subject to sequestration. (6) 1. The word debtor includes companies and aliens. (S. 4.) 2. Wiere the oath only stated the debt against a company, sequestration was refuse'd by the Lord Ordinary against the partners as such and as indi- viduals. (Belli^, 3d Dec. 1831.) 3. A company was dissolved, and certain of the partners were appointed to wind up its affairs, and for that purpose to use the signature of the firm. They required advances, and obtained them from a London house : held in a seques- tration of the dissolved company that the London house was entitled to rank, seeing the advances were made for company purposes, although the bills upon which the advances took place were not signed in the company's name, but in the name of a firm under which two of said partners carried on a separate business. (Findlay, 10th July 1846.) 4. No objection to a law-agent's claim that a portion of the account was incurred during the temporary insanity of the bankrupt, the employment hav- ing been given before it. ( Wink, 8th March 1849.) 5. BiU by partner after dissolution. Vote rejected. (Gordon, 14th June 185L) 6. A call made under Joint Stock Winding-up Act against the executor of a deceased partner is not a debt of the deceased, and consequently will not authorise sequestration of his estates — the subscribed capital having been all paid up, and the company having been solvent at his death ( Wrighte, 20th Nov. 1856, aff. 20th Feb. 1860). This occurred under 2 & 3 Vict. 41, o. 4 ; but the enactment in the present Act is the same. 7. In certain actions between partners qua such, an account was incurred to an accountant for remits : held that it did not form a claim against the com- pany's estates. (Barstow, 15th July 1857 ; vide Wrighie, supra.) (c) The word ' ' jurisdiction " may be interpreted in a variety of ways. It may mean jurisdiction quoad the person or the property, or the person in respect of the property. It may mean jurisdiction quoad omnia, or only a particular estate. It may be jurisdiction so as to regulate succession, or merely to authorise an action or diligence. But in questions between debtor and creditor, jurisdiction obviously means that jurisdiction which is the foun- dation for citation in a personal action, or the execution of diligence. It may be founded in four ways : — 1. By the debtor deliberately estabUshing a domi- cile for himself (E. 1. 2. 16). 2. By a residence anywhere in Scotland for forty days continuously {Jod, 10th June 1859). This was the case of an English- man who came to Scotland for no other purpose than to be sequestrated. 3. By the ownership of heritage. 4. By the ownership of moveables under 220 ACT 1856, WITH NOTES. arrestment jurisdictions fundandte causa. But in these two last cases the debtor must also, some time within a year before the presentatiou of the peti- tion (where he is not the petitioner), have resided or had a dwelling-house or place of business in Scotland. (S. 13.) id) It is not necessary that the debtor, if he is himself the applicant, be notour bankrupt, nor even insolvent, as in the process of cessio. Neither are these necessary in the case of a deceased debtor being sequestrated. (S. 13 (2d part), 15, and 24.) (e) 1. Au oath by a trustee bad, as he did not describe himself as trustee. {Fulton, 9th July 1816.) 2. An affidavit to a debt due to a bankrupt estate must be sworn by the trustee and not by the bankrupt. {Berry, 1st Feb. 1825, aff. 25th April 1826.) 3. A party not entitled to act on a decree for costs which is extracted in name of his law-agents, and which they are enforcing. {Black, 29th June 1825.) 4. Where a father granted of his free will a bond to the children of his first marriage, to pay them at his death the rents of subjects that had be- longed to their mother, but which rents were his by settlement : held that they could not compete with creditors. {Geddes, 5th July 1836.) 5. Where the acceptor of a bill signed for the drawer's accommodation, and the drawer signed for the acconmiodation of an indorser, who, in a letter to the drawer, became bound to retire it, and the acceptor paid the bill : held that he had a direct claim for a ranking on both drawer's and indorser's estates. {AsMey,25t'ii'Feh. lSi5.) 6. A widow ranked as a creditor on her deceased husband's estate, who had given up to him certain paraphernal goods, and received from him an obligation, that if they were disposed of, the amount thereof " shall be in- serted as codicil to my wiU as your own private property, and that you shall be entitled to the amount thereof at my death." (Montgomery, 17th July 1845.) 7. A claim upon an English bond, rejected in respect of its being granted without valuable consideration, and, therefore, by the law of England not allowed to compete with onerous creditors. ( Williamson, 3d Dec. 1845.) 8. Observed that a party may claim in two characters— «. e., as trustee and assignee — but it must be good on either ground. {Taylor, 11th Jan. 1848.) 9. Where the payee of a promissory note indorsed it to parties as a credit, to cover future purchases : held that the holders could only claim a ranking on the granter's estate for the sum actually due them by the payee, and were not entitled to a ranking for the whole contents of the note, the balance being a debt for which the payee might have claimed, but which he declined to do, although the appeal was intimated to him. {Peek, 16th Feb. 1849.) 10. Where a promissory note is granted to A. B. as agent for C. D., the proper party to depone is A. B. ( Wixon, 22d June 1849.) 11. A husband who by ante-nuptial contract made over to his wife, in case of her survivance, absolutely his whole household furniture, having been sequestrated, and having thereafter died : held that the widow was not a creditor. {Darling, 20th Dec. 1851.) 12. Drawer of a bill can prove his debt against the estate by bill, though there be a blank indorsation unscored, but which he was entitled to score. (.4am, 28th Feb. 1852.) ACT 1856, WITH NOTJiS. 221 13. It is uo objection to a vote on bills that they remain indorsed to third parties. (Haine, 13th Deo. 1853.) 14. A creditor, qua factor appointed by the creditors in a sequestration, claimed on the estate of the trustee who was sequestrated : claim sustained (Leek, 7th July 1855). Obsei-ved that his claim qua one of the creditors would have been good. 15. The word " creditor " includes companies and aliens. (S. 4.) (/) Vide QuALiricATioNS of Creditors. (g) This must be read along with s. 7, 8, 9, and 15. The time within which the creditor may apply for sequestration is limited to four months after an act of notour bankruptcy. It is no objection to the application for sequestra- tion that the diligence upon which notour bankruptcy followed has been brought under review by suspension (Sutherland, 11th Feb. 1843), nor that it has been appealed to House of Lords (Kerr, 20th Feb. 1829, aff. 9th Dec. 1830, 4 W. S. 441). (h) The expression ' ' within a year " is far from being definite. It may mean a year complete and continuous, and extending down to the presenta- tion of the petition ; or it may mean residence for any period within the pre- ceding twelve mouths. (i) 1. Where a party carried on business in his own name, and granted a biU in that capacity, and it was alleged that another party was a partner in his business, which was denied, and sequestration was applied for against both parties : held that the process of sequestration was not a competent process for determining the question of the disputed partnership. (M'Gavin, 11th Feb. 1854.) 2. The word " company" includes bodies corporate, politic, collegiate, and partnerships. (S. 4.) • (j) It almost appears from this part of the section that the only requisite for the sequestration of a deceased debtor at the instance of a creditor are, 1. Juris- diction over the debtor by the Supreme Courts of Scotland at the time of his death, and, 2. The usual qualifications of the creditor. But s. 24 would seem to show that some farther requisites have been intended, for it provides that the creditor must in his oath specify the debtor's residence, dwelling-house, or place of business in Scotland at the time of his death, and whether he was then owner of estates in Scotland. There is no mention of these in the above section, and, consequently, they do not appear to be essentials of jurisdiction (vide s. 24, note b). Neither insolvency nor notour bankruptcy are necessary, unless sequestration is wanted forthwith (s. 15). XIV. Petitions for sequestration may be at the instance or Quaiifica- with the concurrence of any one (a) creditor (5) whose debt (c) ti™ofcre- amounts to not less than fifty pounds, or of any two ere- tioningor''' ditors whose debts together amount to not less than seventy concurring, pounds, or any three or more creditors whose debts together amount to not less than one hundred pounds, whether such debts are liquid or illiquid, provided they are not contingent (d). (a) It is of no consequence that the creditor holds the debt in two capacities, partly in his own right and partly as assignee. (Bobi, 28th May 1830, and 9th July 1830, aflf. 3d Oct. 1831, 5 W. S. 740.) (b) The term " creditor" includes companies and aliens. (S. 4.) 222 ACT 1856, WITH NOTES. (c) Amount of Debt — 1. The word "debt" includes principal and interest (s. 52). It also in- cludes exchange and re-exchange on a bill of exchange; also expenses, if pre- cisely ascertained (2 B. C. 321). 2. Where debtor has incurred debt abroad, and returned to Scotland, the creditor is not bound to deduct difference of exchange. (Paul, 13th Feb. 1834, aff. 14th June 1834, 7 W. S. 462.) 3. Interest or discount on a future debt will fall to be deducted. There is, howeTer, no provision in the Act anent such debts for petitioning as there is for voting purposes (s. 52). 4. The creditor may claim on full amount of debt, though purchased by him for a smaller sum. (Rohh, mipra. ) 5. If debt is £50 when petition preseiited, and a portion afterwards paid by a cautioner, still creditor may insist for sequestration. (Allan, 28th Nov. 1840.) 6. As to extent of inquiry into debt at this stage, vide a. 30 and 58, and notes. 7. As to evidence of debt, vide Evidence of Ckeditoes' Qualifications. (d) The term "liquid" is often loosely used by law- writers. Where a debt is not liquid, it sometimes means that it is not a money debt, sometimes that it is not constituted, sometimes that the amount is not fixed ; but in matters of petitioning or voting in sequestrations a liquid debt means one constituted by writing or decree (54 Geo. III. c. 137, s. 15 ; B. C. on 2 & 3 Vict. c. 41, p. 134). All other debts are illiquid, and of such the most common are those founded on open accounts, but occasionally on statements of intromissions. These are sufficient grounds for petitioning or voting (vide a. 49, and notes). But if these debts have anything contingent about them, they are not valid for petitioning. The contingency or uncertainty may exist in five ways : — 1. As to the debtor, in the case of a cautioner in a bond or the drawer of a bill becoming the debtor where principal or acceptor fails ; 2. As to the creditor, in the case of one of the payees in a policy payable to the survivor of two persons ; 3. As to the debt, in the case of a claim on a marine or fire policy ; 4. As to the time of payment in the case of creditors in a policy payable at the debtor's death ; or, 5. As to the amount in the case of damages for injuries not fixed by a jury or otherwise (vide s. 53, and notes, as to voting, &c., on such debts). Within XV. Petitions for sequestration, presented without the con- ■what date currence of the debtor, he being in life, shall be competent only maybe pre- within four months (a) of the date (b) of the debtor's notour bank- sented. ruptcy (c) ; and petitions for sequestration of the estates of a de- ceased debtor at the instance of a creditor may be presented at any time after the debtor's death (d), but no sequestration shall be awarded until the expiration of six months (a) from the debt- or's death (e), unless he was at the time of his death notour bank- rupt, or unless his successors (/) shall concur {g) in the petition or renounce the succession, in which several cases sequestration shall forthwith be awarded ; and in all other oases falling under this Act a petition for sequestration shall be competent at any time, and sequestration may follow thereon in manner herein-after directed (Ji). ACT 1856, WITH NOTES. 223 [a) As to mode of computing time, vide a. 5. (6) Vide s. 9. (c) THs means the constitution of notour bankruptcy ; but it may be con- stituted any number of times (s. 9), and sequestration may be applied for ■witbin four months after any act of bankruptcy {vide Balfour, 20tb Feb. 1841). {d) Upon presenting the petition a deliverance proceeds (s. 26), and that deliverance is the date of the sequestration (s. 42). (e) It would seem that the delay of six months in awarding sequestration of the estates of a deceased person, refers only to applications by a creditor, and not to those by a mandatory under clause A of 2d branch of s. 13. (/) Vide s. 4 for interpretation of "successors." {g) The concurrence seems competent after presentation of the petition as well as before it. (h) Vide s. 29 and 30. The only other cases are these — 1 . The case of the bankrupt being the petitioner ; and, 2. The case of the petitioner being a mandatory if the debtor is dead. Interim Preservation of Estate. XVI. It shall be competent for the Court to which a petition Court may for sequestration is presented, whether sequestration can forth- takemea- with be awarded or not, on special application by a creditor (a), preserve either in such petition or by a separate petition, with or without ^^''''^ ^^- citation (6) to other parties interested (c), as the said Court may tration?"^'" deem necessary, or without such special application if the Court think proper, to take immediate measures for the preservation of the estate, either by the appointment of a judicial factor, who shall find such caution as may be deemed necessary, with the powers necessary for such preservation (t?), including the power to recover debts, or by such other proceedings as may be re- quisite (e) ; and such interim appointments or proceedings shall be carried into immediate effect ; but if the same have been made or ordered by the Sheriff (/), they may be recalled by the Court of Session, on appeal taken, in manner herein-after directed {g). (a) 1. This will include a contingent creditor, as the clause is not limited. 2. Of course an oath by the creditor and vouchers are necessary. (S. 50 ; vide s. 49, note h.) (6) It is usual to cite the debtor upon a short indiuAce. (c) This refers to the bankrupt, and perhaps also the creditor on whose petition sequestration is awarded where the bankrupt is not the applicant himself. (d) By 3. 17 there is provision made for the simple custody or keepiag of the estate ; but the above section allows measures to be taken for its preser- vation, which includes the act of preventing dilapidation, such as the selling of perishable goods, the carrying on of a work, or the completion of a con- tract J he may also be called on to exercise the right of stopping goods in 224 ACT 1856, WITH NOTES. transitu, of removing tenants, and claiming and acting in other sequestra- tions. (2 B. C. 361 ; Crawford, 24tli Nov. 1827 ; Malcolm, 26th June 1828.) (e) This would seem to authorise security to be taken for the safety of the estate. (/) This means either Sheriff or Sheriff-Substitute. (S. 4; vide s. 170, note e.) (ff) 1. Vide s. 170, as to mode of appeal. 2. The Court which appoints the factor may also exoner him, and order his bond to be given up. {Esson, 14th Feb. 1842.) 3. As to calling him to account, vide s. 86. After se- XVII. The Sheriff (a) shall have power, upon cause shown by questration ^ny creditor, or without any application, if he shall think fit, at papers may any time after the sequestration and before the election of a be sealed up. trustee, to cause to be sealed up and put under safe custody the books and papers of the bankrupt, and to lock up his shop, ware- house, or other repositories, and to keep the keys thereof till a trustee is elected and confirmed. (a) This means Sheriff or Sheriff-Substitute. (S. 4.) Courts for awarding sequestra- tion. Forum. XVIII. Sequestration may be awarded either by the Court of Session or by the Sheriff (a) of any county in which the debtor, for the year preceding the date of the petition (6), has resided or carried on business ; provided, that no sequestration shall be awarded by any Court after production of evidence that a seques- tration has already been awarded in another Court (c), and is still undischarged. {a) The word "Sheriff" includes Sheriff-Substitute. (S. 4; vide s. 170, note e. ) (i) "Sequestration, in the case of a deceased debtor, may be awarded by the Court of Session or by the Sheriff of the county in which the debtor, for the year preceding his death, had resided or carried on business." (Act 1857, B. 2, postea.) (c) This does not seem to prohibit a second sequestration in the same Court. The object of this and the following section appears to be the con- fining of all the sequestrations of the same person to one Court. Later Be- XIX. When sequestration has been awarded against a debtor questrations \,y the Sheriffs of two or more counties (a), the later sequestration mittedTo or Sequestrations shall, on production of a certificate by the Sheriff Clerk of the county in which the sequestration first in date was awarded, setting forth the date of such sequestration, be remitted to the Sheriff of such county ; and where all the sequestrations are of the same date, any one may be brought by appeal at any time before either Division of the Court of Session or Lord Ordi- nary; and on such appeal, or when a sequestration has been the first in date. ACT 1856, WITH NOTES. 225 awarded by the Court of Session alone, or by the Court of Session and also by one or more Sheriff Courts, the Court of Session or Lord Ordinary shall remit the sequestration to such Sheriff Court as in the whole circumstances they or he shall deem expedient (6) ; and a notice of such remit shall be inserted in the Gazette within four days afte;i- such remit shall have been made (c) : Pro- vided always, that in any case in which the Sheriff has refused to sequestrate, it shall be competent to present a petition for seques- tration to the Court of Session notwithstanding such judgment of refusal (d). (a) 1. As to competition between two sets of creditors, vide s. 103, note e. 2. "Sheriff" includes "Sheriff-Substitute." (S. i; vide s. 170, note e.) (b) Where bankrupt designed as " William Henry Cole, gentleman, some- time residing at No. 9 Spencer Villa, Putney, in the coxmty of Surrey, and now residing in Storuoway, in the island of Lewis, and county of Ross, " with concurrence of a creditor resident in London, the process remitted to the Sheriff of Edinburgh. {Cole, 17th March 1860.) (c) In the event of a remit by a Sheriff or Sheriffs, a, notice in the Gazette is also to be given (Act 1857, s. 3, postea). The "Gazette" means the ' Edinburgh Gazette ' (s. 4). (d) It would be hazardous to make a second application in a Sheriff Court, in case the objection of res judicata might be held to apply. XX. It shall be competent in such case for each Sheriff {a) No proceed- awarding sequestration to take such measures (h) in the mean '"S ™ j'^'' time as may be necessary for preserving the debtor's estate and sheriff to effects within his jurisdiction, under the provisions of this Act; be effectual but no other orders given by any Sheriff on or after awarding peal, except sequestration, and no proceedings of creditors or others in pursu- forpreser- ance thereof, excepting orders given by the Sheriff before whom estate., the sequestration comes to depend, shall be of any force or effect from and after the date of such appeal, or of sequestration by the Court of Session. (a) Vide a. 170, note e, for interpretation of " Sheriff." (6) Vide a. 16, as to the nature of the measures to be taken. Form of Petition, and Productions therewith. XXI. Petitions (a) for sequestration in the Court of Session shall Form of be made to the Lord Ordinary, and be signed by the petitioner, P"*'''""- or his counsel or agent (V), and the Division of the Court to which the sequestration is appropriated shall be marked thereon, and in the Sheriff Court shall be signed by the petitioner or his agent, and in either Court, in petitions at the instance of the debtor, but not signed by him, there shall be produced therewith a mandate authorising the same (c), signed by him, or in the case of a com- pany (d) signed by a party entitled to act for the company (e) ; and in all cases the petitioning or concurring creditor (/) shall P 226 ACT 1856, WITH NOTES. Oath to be produce with such petition an oath (g) to the effect herein-after produced, specified (A), and also the account and vouchers of the debt as herein-after provided (i) ; failing which production the petition shall be dismissed. (a) An Englishman, having no occupation, and who designed himself ag sometime residing at Park VOlas, &;c., and noTv residing at Tobermory, &c., held sufficient designation. (Joel, 23d Nov. 1859.) (6) This means, of course, a duly qualified agent. The "Lord Ordinary" is the Lord Ordinary on the Bills (s. 4). (c) Vide s. 63, as to requisites of a mandate. (d) This includes bodies corporate, politic, or collegiate, or partnerships. (S. 4.) (e) The parties entitled to act for a company, in the ordinary business of the company, are each of the partners, unless excluded by contract, but in ex- traordinary matters the whole partners must act. An application for seques- tration is certainly not an ordinary act, and there is no case in the books of one partner being held justified in making such an application unless his co- partners be dead or out of the country. Professor Bell is of opinion that a single partner has no such power (2 B. C. 674). In M'Lean, 10th June 1824, sequestration was granted on the application of one partner, the other being out of the country, and having granted the applicant full power to manage the concern, and had for that purpose assigned to him aU right to the funds, re- serving only a claim of accounting for the profits. In Camphell, 3d March 1830, sequestration of a company's estates was granted on the application of one partner, the other being dead. In Buchanan, 6th Feb. 1849, it was granted on the application of one partner, the other having absconded to avoid appre- hension on a criminal charge, but the petition was first ordered to be served at the company's place of business. The prayer for sequestration of the absent partner's individual estates was abandoned. (/) 1. One joint drawer of a bill for £400, and the endorsee of the other, swore, by separate affidavits, to £200 each : sustained. (Hair, 9th March 1830.) 2. An oath, by one of a number of executors, entitled the executors to vote. {Watson, 27th June 1848.) Vide a. 25 as to oaths for corporations, pupils, and others. ((/) 1. If an oath is once found bad by a final interlocutor, it cannot again be founded on. {Bemj, 1st Feb. 1825, aff. 25th April 1826 ; Lang, 16th July 1850; Camphell, 24th Nov. 1855.) 2. After oath is emitted, and left the creditor's hands, it is irregular to alter it, even to correct an error. (Railton, 8th July 1835. ) 3. In the following cases, declarations are allowed. — (1) Quakers and Moravians are allowed", in aU cases, to make an affirmation, which must be in the following form : — "I, A. B., being one of the people called Quakers (or one of the persuasion of the people called Quakers, or of the United Brethren called Moravians, as the case may be), do soleumly, and sincerely, and truly declare and affirm." (2) Separatists have also the privilege of making decla- ration (1 WiU. & Mary, c. 18 ; 7 & 8 WiU. III. u. 34 ; 9 Geo. IV. c. 17 and 32 ; 3 & 4 WiU. IV. c. 49 and 82 ; 1 & 2 Vict. c. 5, 15, and 77). (3) And by a recent Statute, the privilege is extended to all having conscientious objections to the taking of oaths. By 18 Vict. c. 25, s. 1, it is enacted : " If any person called as a witness in any com-t of civil judicature in Scotland, or ACT 1856, WITH NOTES. 227 reqtiired or desiring to make an affidavit or deposition, shall refuse or be un- willing from alleged conscientious motives to be sworn, it shall be lawful for the Court or Judge, or other presiding oflSoer or person qualified to take affi- davits or depositions, on being satisfied of the sincerity of such objection, to permit such person, instead of being sworn, to make his or her solemn affirma- tion or declaration in the words following, ndeUcet—l, A. B., do solemnly, sincerely, and truly affirm and declare that the taking of any oath is according to my religious belief unlawful ; and I do solemnly, sincerely, and truly affirm and declare," &;c. 4. Held no objection to the oath that it was emitted a year prior to the petition. {Gfreenhill, 17th Jan. 1824; but vide 2 B. C. 324, and Glvan, 2d Dec. 1837.) 5. The above forms must be strictly followed. Where the word "truly" was omitted in a Quaker's declaration, it was held fatal. {M'Cubbin, 28th June 1850. 6. The word ' ' oath " includes affirmation or declaration in all Statutes. (13 & 14 Vict. 0. 21, s. 4.) (A) Vide s. 22. (i) Vide s. 49 as to nature of vouchers ; also Ceeditok's QuALiriCATiONS. XXII. Such oatli (a), in the case of a creditor (b) residing Oath to be witkin the kingdom of Great Britain and Ireland (c), shall be*"™"'?"' taken by him before a Judge Ordinary, Magistrate (d), or Justice extent of of the Peace (e), to the verity (/) of the debt (y) claimed by him; securities. and he shall in such oath state what other persons (A), if any, are, besides the bankrupt (i), liable for the debt or any part thereof, and specify any security {j) which he holds over the estate of the bankrupt or of other obligants, and depone that he hohis no other obligants (k) or securities than those specified ; and where he holds no other person than the bankrupt (I) so bound, and no security (in), he shall depone to that effect (n). N.B. — TAe above section is contained in s. 9 o/2 ors corporation, or m case oi other companies an oath by a partner able, shall be sufficient ; and where any creditor shall be under age (c) or incapable to make oath (d), an oath of credulity as aforesaid by his authorised agent, factor, guardian, or manager, shall be suffi- cient (e). N.B. — This section iscontalned in s. 9 and 10 of 2 g the hands of the trustee, an oath (g) to the effect and taken in duce oath. manner herein-before appointed (h) in the case of creditors peti- tioning for sequestration, and the account and vouchers (z) necessary to prove the debt(_;) referred to in such oaths. {a) The provisions in the Statute for the ranking of creditors are matters of remedy, and fall to be applied although the debt was contracted in a country where the laws of ranking in bankruptcy are different. {Lush, 29th June 1843.) (J) 1. The production of the oath and vouchers, while necessary to entitle the creditor to vote and rank, is not sufficient for that end. There are other requisites. {Vide Qtjalifioations of Creditoks.) 2. The fact of a creditor being conjunct or confident with the bankrupt is no objection per se to his vote. {Mmvhrary, 18th May 1793 ; Furlong, 1st Feb. 1809, 2 B. C. 366.) 3. Neither is an interest adverse to the general body of creditors an objec- tion. {Vide a. 68, note i.) (c) The word "creditor" includes companies, &c. (S. 4.) (d) The word "vote" includes consent to a composition or discharge, as also a dissent from them. (S. 4. ) (e) The expression "dividend" applies to the dividend of a creditor, whether ordinary or preferable, as will be seen by referring to s. 126, which sets forth that the trustee shall " complete the list of the creditors entitled to draw a dividend, specifying the amount of their debts, with interest thereon to the date of the sequestration, and distinguishing whether they are ordinary 248 ACT 1856, WITH NOTES. creditors, or preferable, or contingent." .It is plain, therefore, that all the creditors must lodge an oath and claim, whether they be ordinary creditors merely, or preferable creditors, as arresters or inhibiters, or privileged credi- tors, as physicians or servants. And if the claim is for a preference, the credi- tor must specially set it forth in his oath. (/) 1 . If vouchers are not produced, no matter from what cause, the creditor cannot vote (s. 60), but if they have once been prodiiced the creditor may continue to vote, though they have been borrowed up ( Woodside, 15th July 1847 ; Watson, 22d Feb. 1848). "Where a bfll had been the ground of debt in awarding sequestration, and the creditor set forth in his affidavit that it was retained by the agent in that proceeding, it was held by the Lord Ordinary (Cunninghame), and acquiesced in, that the biU was truly in the hands of the Court, and the vote was sustained [Poynter, 9th March 1839). Vide s. 123, note a, as to effect of non-production of vouchers in the raniiing. 2. In a competition for a new trusteeship, the Court allowed new affidavits to be given in, where the former oaths and productions had been destroyed by fire while they were in the possession of the former trustee, and sustained the votes — the sederunt-book showing that the creditors who produced them had been allowed previously to vote and draw a dividend. [Ocdloway, 19th Dec. 1849.) ig) 1. A creditor is not limited to one affidavit. He may vote on three separate oaths, each upon a different debt, and none of them bearing any re- ference the one to the other. (WUsoti, 21st Dec. 1844.) 2. There is no necessity of a claim separate from the oath (2 B. C. 336), nor even a claim in the oath, for the Statute makes no distinction between them (s. 51 and 126, &c.) ; and in none of the sections prescribing the requisites of oaths is there any mention of "claim" (s. 22, &c. ) But if a, preference is claimed, it must be expressly done. 3. One oath may serve for petitioning, voting, and ranking, but it must be adapted to each of these cases. 4. " Oath" includes affirmation. (13 & 14 Vict. c. 21, s. 4.) (h) Vide s. 21, 22, 23, 24, and 25, as to requisites of oaths. («) Nature of Vouchers. — The above section applies to vouchers used for voting and ranking, but by s. 21 the same rule applies to vouchers for peti- tioning. In regard to the following cases it is to be remarked that, with one exception, they were all decided under former Statutes. Those prior to 1839 were decided under 54 Geo. III. c. 137, s. 15, which requires "production of the grounds of debt or a certified copy of the account," while those up to 1856 were decided under 2 & 3 Vict. o. 41, s. 11, which is the same as the one now under consideration. ( I. ) Vouchers for Petitioning. 1. A bill by a partner in name of the company granted after dissolution, is not a good voucher. (Snodgrass, 16th Jan. 1846.) 2. A document bearing an examination of accounts " which I am to pay you on demand," unstamped, held bad [Scott, 23d June 1847). Observed in this case that an acknowledgment for money loans is not in re mercatoria, and requires to be either holograph or tested [vide Laidlaw, infra). 3. Date of bill erased, held bad. [M'Bostie, 2d March 1850.) 4. In accoimt-current produced, credit wa,s given for balance of another account, but there were no details; held good. {Elder, 12th June 1850.) ACT 1856, WITH NOTES. 249 (II.) Vouchers /or Voting. 1. A vote by a father on a bill in the sequestration of the company of which his son was a partner, though liable to suspicion, was sustained. {Furlong, 1st Feb. 1809.) 2. A cash credit bond, and stated account in terms of it, held sufficient. (Murray, 22d June 1821 ; vide Mitter, 27th Jime 1848.) 3. The Justice of the Peace need not sign account annexed to oath (Tarnbidl, 1st March 1828), imless it is to be held as part of the oath (M'CuhUn, 28th Jime 1850.) 4. An account "to goods as per invoice," held bad. {Hair, 9th March 1830.) 5. A claim on account of intromissions by the bankrupt with an estate, con- form to a subscribed state, and upon the promises assumed and founded on in a depending action, held good. {Paid, 13th Feb. 1834, aff. 14th Jime 18.34, 7 W. S. 462; ride King, 24th Jan. 1828.) 6. Where a claim was counted in various proceedings, held, after the lapse of twenty years, that bankrupt was not entitled to object on the ground of vagueness in the account. {Duncan, 3d June 1834.) 7. Certain items objectionable under the Tippling Act. The claim re- stricted, but quoad the balance sustained. {Givan, 2d Dec. 1837.) 8. A creditor may found upon _^an open account although he holds a bill which is not due for a portion of the account. {Johnston, 18th July 1840.) 9. Where a creditor in his oath founded on an open account, and at the end of it a deduction was made of £100 contained in a bUl granted for part of it, and then the amount of the bill itself was added, but the bUl was not due and no deduction of interest was made, while the bill was produced at the meeting ; held that the accoimt was a good voucher, and that these cross entries did not injure it. {Johnston, supra.) 10. Not necessary to sign the vouchers {Cvllen, 16th July 1842) nor accounts ( Woodside, 15th July 1847). 11. Acknowledgments of debt to near relations granted on eve of seques- tration, rejected. (CvZlen, supra.) 12. Where a document was stamped in the course of a competition, it was held that the stamping was retroactive. {Mories, 24th Nov. 1843.) 13. An acknowledgment by the bankrupt to his brother-in-law the day before sequestration appended to a state of money loans, and not tested or holograph; claim rejected. {Laidlaw, 27th Jan. 1844) 14. Where claim for goods sold and vouched by the acknowledgment of the bankrupt, but without any account or particulars, it was rejected. Lord Medwyn observing, " It is obvious that there must have been some accounts or other vouchers, and that these ought to have been produced" {Aithen, 14th Feb. 1846). And after vote, creditor not allowed to produce additional vouchers (ibid.). 15. The bUl produced being drawn by bankrupt on claimant, though sworn to be accommodation to bankrupt, and paid by claimant, held to be no voucher. {Dijce, 19th Dec. 1846.) 16. A holograph letter shortly before sequestration, acknowledging a debt, held not to prove its own date, and not such a document as creditor should have. Vote rejected. (X»i/ce, 28th May 1847.) 17. Claim for a penalty under an agreement without specifying actual damage, held bad. {Anderson, 7th July 1847.) 250 ACT 1856, "WITH NOTES. 18. In an oatli a debt was deponed to "conform to accoimt signed by the deponent as relative hereto," and in the account annexed an item was for a bill dated 3d December, while the biU produced was dated 3d November ; held bad. (Anderson, supra; Dyce, 19th Dec. 1846.) 19. A vote by a trustee rejected for non-production of his act apd warrant. (Anderson, 9th July 1847.) 20. In a riding-master's account, a charge was made for price of a horse sold, but the day of the month not given — also an item for "keep of brown (horse omitted) to stand at livery at 20s." Objections repelled. ( Woodside, 15th July 1847.) 21. In an oath the creditor founded on an account as "herewith produced and subscribed by the deponent, " while the account, which was on the same paper, was not so subscribed, but was initialed by the magistrate ; held that the account was sufficiently identified, and creditor allowed to vote. ( Wood- side, supra.) 22. While the account annexed contained "per estimate," and no estimate produced, held bad. ( Woodside, 15th July 1847.) 23. Claim upon I U to law-agent, granted shortly previous to sequestra- tion; held bad. (Oascoyne, 10th Deo. 1847.) 24. In claiming on the estate of a cautioner for a bank manager, sufficient to produce bond of caution, with statement of loss from a large number of bills specially mentioned, or their proceeds, if paid, not being forthcoming. But the bank's claim for overdrafts by customers repelled, as the details not given and the books and vouchers not produced. (Forrest, 23d Dec. 1848.) 25. An account undergone triennial prescription is not a voucher. { Winh, 8th March 1849.) 26. Claim for rent rejected, where no lease nor voucher produced, and the creditor merely deponed that the bankrupt was tenant imder the creditor's predecessor, and that the rent was "moderately estimated" at the sum claimed. ( Wink, 8th March 1849. ) 27. Neither is a prescribed bill a good voucher (LocTchart, 12th July 1849), nor promissory note (Nishet, 17th June 1856). 28. An account said, "Amount of sugars sold and delivered per invoice," but the invoices produced being unsigned ; held good. (Kmnear, 14th Nov. 1849.) 29. Wliere one item of an account was unvouohed, opiuion that claim may be sustained quoad ultra. (Kinnear, supra. ) 30. A statement of calls made by a railway company, and excerpt of mimite of directors making the calls, not sufficient vouchers — the register of share- holders not being produced. (Kinnear, supra.) 31. Decree cognitionis causa obtained in absence against next of kin of a deceased bankrupt is not a sufficient voucher. (TurnbuU, 27th June 1850.) 32. Bills vitiated in sum and place of payment, one having " teen " added to the word "nine," and the other having the place of payment deleted. Votes rejected. (M'Cubbin, 28th June 1850.) 33. Where a written lease was for one year and the tenant remained upon tacit relocation, held that in claiming for subsequent rents he must produce the lease. (Menzies, 5th June 1851.) 34. Where a bank claimed upon a cash account which began with a balance in favour of the bankrupt of a former account, but produced no voucher or docquet relative to the balance, held to be an incomplete account, and vote rejected. (Low, 10th July 1851.) ACT 1856, WITH NOTES. 251 35. A claim upon an account, part of whicli waa prescribed, and the re- mainder exhausted by a secm-ity stated as held for the account, rejected. {Low, 10th July 1851.) 36. In state of debt annexed to the oath, an en-or in giving date of grant- ing bill not fatal, the date when due being correctly given. {Foulds, 12th July 1851.) 37. Where the account contained certain slump items for ' ' postages and cash" but no vouchers, and also items for disbursements without the receipts, rejected, although the account was signed by the bankrupt as correct. (Sam- son, 18th July 1851; vide Anderson, 9th July 1847.) 38. A factor loco tutoris not bound to produce his act and decree. {Aitken, 28th Feb. 1852.) 39. Bill dated two years before to the mother-in-law of the bankrupt, and not operated on till three days before bankruptcy, and no information in the oath as to the origin of the debt, held suspicious and rejected. {Anderson, 13th June 1852.) 40. A bill was blank indorsed to A. , who ordered diligence ; the contents were paid to the messenger by B., who got the bUl, but without any new in- dorsation or any assignation. Held a good voucher to B. {Nieoll, 20th Dec. 1855.) 41. Where the brokers under a marine policy did not produce it, the vote held bad. (Murray, 15th Nov. 1856.) 42. Held that it was not a fatal objection to the vote that the claim and oath contained an item which was not vouched. (Chalmers's Trustees, 12th May 1860.) 43. A trust disposition without confirmation is a good title to enable the trustees to vote. (Ibid.) ( III.) Vouchers for Ranking. 1. In 1827 a farmer died, his son taking the lease and his daughters the moveables. The seed of that year's crop was taken from the crop of 1826, and the labour performed by the horses belonging to the daughters. Thereafter the stock was sold to the son, and no mention made of the supply of the seed and labour. No money was ever paid. In 1842 the son died, and his estates were sequestrated in 1846. The Court allowed a proof. (Madcintosh, 4th July 1849.) 2. A state made up by a professional accountant of the intromissions with the funds of a savings bank by the cashier in order to rank on his estate, with production of the books and accounts of the bank, held suflScient. (Forbes, 2d Jiilyl851.) (j) In ranking for a preference, evidence of the debt was produced, but not the inhibition or assignation on which the preference was founded. Allowed to produce them afterwards, and observed that the trustee ought to have called for them (Walker, 17th Dec. 1853). This occurred imder s. 11 of 2 & 3 Vict. c. 41, which on this point is the same as the above. L. If the creditor (a) be not in possession of such accounts Oath in and vouchers previously to the period herein-after assigned for -'^^^ where lodging claims with a view to a share in any dividend (6), he vouchers™ shall state, in his oath (c), the cause of the said accounts and are not in - - - - . creditor's possession. vouchers not being produced, and in whose hands, to the best of f ^ '*'"^ ^ his knowledge, the same are {d), which oath shall entitle him to 252 ACT 1856, WITH NOTES. have a dividend set apart till a reasonable time (e) be afforded for production thereof, or for otherwise establishing his debt ac- cording to law {/) ; but he shall not be entitled to act or vote till such production be made, or the debt established as aforesaid ; and the trustee shall, on production of the oaths and grounds of debt, mark the same with his initials, and make an entry thereof in the sederunt-book, and of the date when the same were pro- duced, and, if required, he shall return to the creditor the grounds of debt (cj). N.B. — Tim above section is so far the same, ass.WofVL&Z Viet. c. 41, as to render the following cases quite applicable. (a) The word " creditor " appKes So companies, &c. (S. 4.) {b) Vide a. 123 and subsequent sections. (c) Or aflSrmation. (13 & 14 Vict. c. 21, s. 4.) {d) 1, Of course if the case does not admit of vouchers — e. g., a claim of damages — the creditor will depone to that effect. 2. Where a creditor did not state where the vouchers were, the Court would not order a dividend to be set apart. (Taylor, 11th Jan. 1848.) 3. Where in an account there was an item "to amount of account rendered, £435, lOs.," and the account was not produced, nor any reason assigned for its non-production, rejected, and no dividend ordered to be set apart. (Halli- day, 11th July 1848.) 4. Held under the same clause (s. 11) of 2 & 3 Vict. c. 41, that a decree cognitionis causa against the next of kin, and to which action the trustee was called as a party, but did not appear, was sufficient prima facie evidence to entitle the creditor to have a dividend set apart, and the state of accounts investigated. (Listen, loth July 1853.) (e) What is a "reasonable time " for production of vouchers or establish- ing the debt, is a question of circumstances. (/) The creditor may raise an action against the bankrupt notwithstandmg the sequestration, in order to constitute his debt, calling the trustee as a party. ( Vide s. 123, note a.) (g) Vide s. 49, note/ Prorision LI- When it shall appear to the Sheriff (a) or to the trustee for correc- that the Oath (6) or claim of any person produced with a view to oa . .^Q^jjjg gj. ranking, and drawing a dividend on the sequestration, is not framed in the manner required by this Act, the Sheriff or trustee, as the case may be, shall call upon such person, or his agent or mandatory (c), to rectify his oath and claim, pointing out to him wherein it is defective ; and unless such person or his agent or mandatory shall thereupon make such alteration (d) upon Lis oath and claim as may be necessary in order to rectify the same, the Sheriff or trustee, as the case may be, shall dis- allow or reject such oath and claim : Provided always, that when the failure to comply with the provisions of this Act shall appear to have been made for some improper or fraudulent pur- poses, or where injury can be qualified by the other creditors or ACT 1856, WTTH NOTES. 253 any of them in respect thereof, it shall not be incumbent upon the Sheriff or trustee to give such person an opportunity to rectify his oath and claim as aforesaid. (a) Or Sheriff-Substitute. (S. 4; vide a. 170, note e.) (6) Or affirmation. (13 & 14 Vict. c. 21, s. 4.) (c) This applies to the case of the oath being made by the agent or manda- tory. (S. 23.) {d) The correction must be upon oath. {Gibson, 17th Dec. 1853.) LII. A creditor who has a claim or a debt due shall be entitled Creditors to vote (a) and rank for the accumulated sum of principal and "7^™^ interest to the date of the sequestration, but not for any interest for princi- accruing after the date of the sequestration, and if the debt is ^eresTto'"' not payable till after the date of the sequestration, he shall be date of se- entitled to vote and rank for it only after deduction of the inte- q^estration rest from that date, and he shall also be liable to deduction of any discount beyond legal interest to which his claim is liable by the usage of trade applicable to it, but he shall not be bound to specify separately in his oath or claim for his debt the amount of any interest due thereon or of any interest or discount deducted therefrom, or to specify therein any accumulated sum of principal and interest (b), and if there be any residue of the estate after discharging the debts ranked he shall be entitled to claim out of such residue the full am.ount of the interest on his debt in terms of law (c). (a) As to interpretation of word "vote," vide s. 4. (6) This is an important variation from the Statute of 2 & 3 Vict. e. 41, s. 32, which required the creditor, in addition to setting forth the principal debt, to specify in his oath the amount of the interest, and also of the accu- mulated sum, and also to specify the amoimt of any discount to be deducted, and also of the balance ; and by innocent omissions of this arithmetical state- ment, many votes were set aside in competitions. (c) It is supposed that the surplus "will fall to be applied under the seques- tration towards payment of the interest without any new process of law. LIII. When the claim of a creditor depends upon a contin- Valuation gency (a) which is unascertained at the date of lodging his claim, penJU™on' he shall not be entitled to vote (b) nor to draw a dividend in a contin- respect of such contingent debt, but he may (c) apply to the g^'"=y- Sheriff (J), if the trustee has not been elected, or, if elected, to the trustee, to put a value on such debt, and the Sheriff or trus- tee (as the case may be) shall put a value thereon as at the date of such valuation ; and on such value being fixed such creditor shall be entitled to vote and draw dividends in respect of such value, and no more : Provided that if such contingency have taken place before the debt has been valued, such creditor may vote and draw dividends in respect of the amount of the debt, but the same shall not disturb any former dividends allotted to 254 ACT 1856, WITH NOTES. otlier creditors ; and when such application is made to th Sheriff or trustee, notice thereof shall be given to the bankruj and petitioning or concurring creditor ; and the judgment ( the Sheriff or trustee shall be subject to review, and any creditc who has claimed (e) on the estate may appeal, or appear and h heard on any appeal (/). {a) 1. As to different kinds of contingent debts, vide s. 14, note d. 2. An indorsee on a current bill, wherein the bankrupt is drawer, found i be a contingent creditor quoad him. (Morrinon, 28th Jan. 1832 ; Gordm 14th June 1851.) 3. A claim of relief under a clause of warrandice held a contingent claia and a dividend set apart, although a reduction of the title was unsuccessfu but in which an appeal to the House of Lords was intimated. {Garden, 15f June 1860.) (6) The word "vote," in addition to its ordinary meaning, includes a coi sent to, or a dissent from, an offer of composition, and the debtor's dischar^ (s. 4). A contingent creditor cannot petition, or concur in a petition, for s( questration (s. 14) ; but with these exceptions, a contingent creditor has a the privileges of any other creditor. (c) This step is optional, so, instead of taking it, he may apply to have h dividend set apart. (S. 129.) (cZ) Or Sheriff-Substitute. (S. 4.) (e) Vide s. 58 and 14, note d. if) Of course a claim must be lodged. (S. 49. ) Valuation LIV. No Creditor in respect of an annuity granted by th annuity' ™ bankrupt shall be entitled to vote (a) and draw a dividend unt: such annuity shall be valued, but he may, if the trustee has nc been elected, apply to the Sheriff (S), or, if elected, to the tru£ tee, to put a value on such annuity ; and the Sheriff or truste( as the case may be, shall put a value on the annuity, regar being had to the original price given for the annuity, deductin therefrom such diminution in the value of the annuity as sha have been caused by the lapse of time since the grant thereof t the date of the sequestration (c) ; and such creditor shall be er titled to vote and draw dividends in respect of such value, an no more : Provided always, that when such application is mad to the Sheriff, notice thereof shall be given to the bankrupt an the petitioning or concurring creditor ; and the judgment of tl Sheriff or trustee shall be subject to review (d), and any creditc who has claimed (e) on the estate may appeal, or appear and I heard on any appeal (/). (a) For meaning of word " vote," vide s. 4. (b) Or Sheriff-Substitute. (S. 4; vide s. 170, note e.) (c) In a settlement by composition the value of an annuity was fixed as date of sequestration, and the Northampton Tables were taken to fix t amount by Lord Ordinary, and acquiesced in. (Ferguson, 16th Nov. 1836.] ACT 1856, WITH NOTES. 255 {d) The creditor may vote, thoixgli the deliverance by the Sheriff is imder appeal. ( IFofeom, 27th June 1848.) (e) ride s. 49, 50, and 58. (/) A claim must be lodged. (S. 49.) LV. "When any person is bound as cautioner for payment of Creditor such annuity, it shall not be lawful for the creditor therein to sue ""'''' *"^ or charge such cautioner after the date of the sequestration, ex- after the cept for the value fixed as aforesaid, and the arrears of annuity date of se- and interest thereon (a) ; and on such cautioner making payment '^^^ of such value and arrears to the creditor, and the lawful interest thereon, he shall be discharged of all liability for such annuity, and he may thereupon enter a claim in the sequestration for the sum so paid, and vote and draw dividends thereon ; provided that if such cautioner shall not pay the sum so fixed, and arrears and interest as aforesaid, before any payment of the annuity subsequent to the fixing thereof becomes due, he shall be bound to make payment of the said annuity, and all subsequent an- nuities, until he shall make payment of the sum so fixed, arrears of annuity and interest as aforesaid, deducting always such divi- dends as the creditor shall have received before full payment as aforesaid. (a) This privilege appears limited to where the annuitant has obtained the annuity valued under the Act. LVI. When a creditor has an obligant bound to him along with obligant the bankrapt for the whole or part of the debt, such obligant ^°' ireei shall not be freed from his liability for such debt in respect of iit™ordebt, any vote given or dividend drawn by the creditor, or of his in respect assenting to the discharge of the bankrupt, or to any composi- giv^^or" ^ tion (a) ; but such obligant may require and obtain, at his own dividend expense, from such creditor, an assignation to the debt, on pay- the™editor ment of the amount thereof, and in virtue thereof enter a claim on the said estate, and vote and draw dividends, if otherwise legally entitled to do so. (a) At common law, a creditor, by accepting a composition from the prin- cipal debtor in discharge of the debt, liberated the cautioner (1 B. C. 359). But if he first call upon the cautioner to pay the debt, and take the principal debtor in his own hand, and he fail to do so, the creditor may safely take the composition, provided he reserve recourse against the cautioner in so doing {Smith, 22d Nov. 1821). At the same time, the creditor is not bound to rank on the principal debtor's estate {Anderson, 25th May 1811, F. C. ; Ivory's Ersh., b. 3, t. 3, s. 66, note 173). The above section puts the law on a better footing ; for the creditor is not debarred from taking measures against the principal debtor without losing recourse upon the cautioner, while the cautioner if he is not satisfied, can pay up the debt, and take these measures himself. LVII. No person shall, by merely lodging an oath and 256 ACT 1856, WITH NOTES. expenses. Liability of claim (a), or being ranked or receiving payment of a dividend, oi creditors for appearing Or voting at a meeting in a sequestration as a creditor, be liable for any claim by the agent or other person employed by the trustee for money advanced, or expense incurred, or remu- neration in relation to the affairs of the estate, reserving to the agent or other person so employed right to payment out of the estate and from the tnistee by whom he may have been em- ployed, in so far as the same may be competent to him ; and no trustee shall have relief in respect of such payment against such creditor, reserving to such trustee relief against the estate, and against those creditors or others vcho may on other grounds be liable in relief (J). (a) 1. The expression " oath and claim " means the oath lodged in terms of s. 49. ( Vide s. 49, note g.) 2. " Oath " includes affirmation. (13 & 14 Vict. c. 21, s. 4.) (J) Prior to Statute 2 & 3 Vict. c. 41, creditors often suiFered a loss by ranking in a sequestration, instead of receiving a benefit ; for they were held personally liable for the expenses of the sequestration, if there were no funds to pay them {ffowden's Trustee, 10th Feb. 1835 ; Gowan, 19th Feb. 1835). The above section takes away this responsibility, even though the creditor vote under the sequestration. LVIII. In no case shall oaths of verity or credulity supersede production of legal evidence, when required, in any discussion before the Court of Session, the Lord Ordinary, the Sheriff, oi the trustee (a). (a) As to nature of vouchers and extent of scrutiny in voting, vide Evi- dence OF Ckeditor's Qualifications. Oaths not to super- sede other evidence. 2i). Special Rules as to Voting. Valuation LIX. If a creditor hold a security (a) for his debt over an) of securities pg^^j; pf ^jjg estate of the bantmpt, he shall, before voting, make or vo mg. ^^ ^^^^ ^^^^ j^ which he shall put a specified value (c) on sucl security, and deduct such value from his debt, and specify th( balance, and if the estate over which the security extends b( sold, he shall specify in his oath the free proceeds which he hai received or shall be entitled to receive therefrom, and specify 1h( balance due after deduction thereof (c), and he shaU be entitled ii any case to vote in respect of the balance, and no more, withou prejudice to the amount of his debt in other respects ; and i] questions as to the disposal or management of the estate subjeo to his security he shall be entitled to vote as a creditor for th' full amount of his debt, without making any such deduction. N.B. — The following cases, though pronounced under former Statutes, sti apply under the above section. (a) 1. A promissory note by the bankrupt is not a security. {Bow, li June 1811, F. C.) ACT 1856, WITH NOTES. 257 2. An arrestment is a security (Woodside, 15th July 1847; Gibson, 17th Dec. 1853) ; and so is an inhibition [Hay, 5th Feb. 1850). 3. The oath is incorrect if the creditor holds three securities for separate debts, and does not value them separately, but in cumido. (Smith, 6th Feb. 1849.) 4. A party entailed an estate, and died lea^dng personal debts. The son was sequestrated, and a personal creditor of the entailer, in voting on the estate of the son as liable for his father's debts, held bound to value and deduct as a security his right of payment out of the entailed estate. (Smith, supra J videM'Leod, 1st Feb. 1851.) 5. Opinion that a law-agent's hypothec over title-deeds is a security. (Elder, 12th June 1850.) 6. A medical man, in claiming to vote, is not bound to value and deduct, though his debt be privileged. (Low, 10th July 1851.) 7. It is enough to value several secm-ities in cumulo, if they be all held for the same debt. (Fmdds, 12th July 1851.) 8. As to interpretation of " security,'' vide, s. 4. (b) Or affirmation. (13 & 14 Vict. c. 21, s. 4.) (c) It is necessary that a value be put on the security ; and it is no answer to say that it is worthless. A nominal value may be put on it, or the creditor may even value it at nothing. (M'Ewan, 7th Dec. 1842 ; Hay, 5th Feb. 1850; Gibson, supra; Aitken, 10th June 1848.) LX. When a creditor lias an obUgant bound with but liable in Valuation relief (a) to the bankrupt, or holds any security (h) from an obli- "^ "thga- gant liable in relief to the bankrupt, or any security from which obligants the bankrupt has a right of relief, such creditor shall, before '«''* bank- voting, make an oath (c), in which he shall put a specified value on the obligation of such obligant, and on such security, to the extent to which the bankrupt is entitled to relief, and he shall deduct such value from his debt, and specify the balance ; and he shall be entitled to vote (c?) in respect of such balance, and no more, without prejudice to the amount of his debt in other respects. N.B. — The above is the same as s. 34 of 2 & 3 Vict, v, 41, under which the foUowing cases were decided. (a) 1. The creditor is not bound to value and deduct the obligation of a co-obligant, who may, ex facie of the documents, be liable in relief to the bankrupt, provided he swear that in reality the co-obligant is not so liable in relief. In two cases it was held otherwise (Givan, 2d Dec. 1837 ; Machersy, 7th March 1829). But in the case of Dyce, 11th March 1847, a vote was admitted on a bill where the bankrupt was drawer, and where no valuation of the security of the acceptor was given ; but the oath added, " that the bill was granted for the accommodation of the bankrupt, and that the acceptor is not bound to reheve the bankrupt of the debt contained in and constituted by the bill, or any part thereof." The Sheriff-Substitute, in respect of the oath, sustained the vote, and the whole Court, by a majority, affirmed. " In this stage of the proceedings, it is the oath, and it alone, apart from what may afterwards turn out on a more thorough investigation of evidence, to which the Statute has, and was intended to have regard. The creditor is to E 258 ACT 1856, WITH NOTES. Valuation of claims against a company and part- ners. qualify Ms claim, and that is by swearing to its value, after deducting co-obligauts, to the extent to which the bankrupt is entitled to relief : the creditor's knowledge of the extent is to be set forth in the oath, and which is necessarily to be taken in the first instance as its true and only measure." (Per Lord Ivory.) This case proceeds on the correct principle, that although a creditor is or is not to specify value, and deduct according as there may or may not be a claim of relief competent to the bankrupt, yet he (the creditor) is not bound to prove that there exists or does not exist a well-founded right of relief. It is a matter of swearing, not a matter of fact. The Court will not look at evidence on the subject. It is quite different from the statutory requisite, that the creditor shall produce such accounts and vouchers as shall be neces- sary to prove his debt (s. 49) ; for there the creditor must not only swear to his debt, but produce evidence of it, and therefore where the documents pro- duced as evidence do not prove, but disprove the debt — as in Pateraon, 2d June 1847, where the drawer of a bOl produced the bill as evidence of a debt against the indorsee — the claim wiU be rejected. 2. A bank claimed on the estate of the representative of a cautioner under a bond of caution for the intromissions of their manager, and, in a statement of losses, set forth various parties to whom bills had been discounted, and over-advances made. Held not bound to value and deduct the obligations of these parties, (i^'on-esi, 23d Dec. 1848.) 3. Where, during the temporary insanity of the bankrupt, his brother authorised a law-agent to continue to act for the lunatic, held that the brother had incurred no liability for the agent's account — at least not one that required to be valued. ( Wink, 8th March 1849. ) 4. Where a, creditor valued at a slump sum the obligation of certain co- obligants on various bills, sustained and held not bound to value their obliga- tion for each bill separately. {Foulds, 12th July 1851.) (6) As to interpretation of " security," vide a. 4. As to what are securities, vide s. 59, note a. As to worthless securities, vide s. 59, note c. (c) Or affirmation. (13 & 14 Vict. c. 21, s. 4.) (d) As to interpretation of " vote,'' vide s. 4. LXI. A creditor on the estate of a company (a) shall not be bound, for the purpose of voting on the company's estate, to deduct from his claim the value which he may be entitled to draw from the estates of the partners ; but if he claim on the estate of a partner, he shall, before voting, in his oath (6) put a specified value on his claim against the estate of the company, and also against the other partners thereof, in so far as they are liable to relieve such partner, and deduct such value from his debt, and specify the balance ; and he shall be entitled to vote (c) as a creditor for the said balance, and no more, without prejudice to the amount of his debt in other respects. (a) This includes corporations, &c. (S. 4.) (6) Or affirmation. (13 & 14 Vict. c. 21, s. 4.) (c) As to interpretation of "vote," vide a. 4. LXII. It shall be competent to the trustee, with consent ACT 1856, WITH NOTES. 259 of tlie commissioners (a), within two months after an oath (4), Trustee specifying the value of a security, or obligation, or claim in '™y ''ciiuiie the several cases before mentioned, has been made use of in anco'of se- voting at any meeting, or in assenting to or dissenting from the °™^y ^y bankrupt's composition or discharge ; and it shall also be compe- 20 per cent tent to the majority(c) of the creditors (excluding the creditor ^'?<*'''°° '" making such oath) assembled at any meeting (d), and during such valu^km. meeting, to require (e) from the creditor making such oath a con- veyance or assignation in favour of the trustee of such security, obligation, or claim, on payment of the specified value, with twenty per centum in addition to such value ; and the creditor shall be bound to grant such conveyance or assignation, at the expense of the estate : Provided that wher^ a creditor has put a Cieditor value on such security or obligation, he may, at any time before ""^y correct he has been required to convey and assign as aforesaid, correct bynewoath. such valuation by a new oath, and deduct such new value from his debt. (a) This means a majority. (S. 4) (i) Or affirmation. (13 & 14 Vict. c. 21, s. 4) (c) This majority means a majority in value. (S. 101.) (d) Vide s. 145, note h. (e) At a statutory meeting, it was resolved that a creditor who was present should be called upon, " in terms of law," immediately and on payment of the valuation, to assign certain securities which he had valued, but he was not expressly offered the 20 per cent additional. Held that this was a sufficient re- quisition, in terms of 2 & 3 Vict. u. 41, ». 36, which is the same as the above. [Greig, 9th June 1853.) LXIII. The mandatory of any person entitled to vote as a Manda- creditor may vote in the absence of such creditor, provided he *^"^? f"' exhibit a mandate (a) ; and the vote of such mandatory shall, may' vote. within his mandate (b), be held as the vote of the creditor him- self (c). (a) 1. The mandates must be in writing. (2 B. C. 349.) 2. Mandates in judicial proceedings need not be holograph or tested. {Scudamore, 3d June 1797, D. 8559.) 3. Where the mandate is not addressed to any one, it has been said that possession seems enough to supply the want. (2 B. C. 349. ) 4 The address of a mandate which was in the creditor's handwriting was scored, and another name put in by the candidate in whose handwriting the body of the mandate was. Held not fatal. {TurnbuU, 1st March 1828.) 5. No objection that bankrupt's name was omitted in the mandate — ^the oath, account, and mandate being all on one sheet. (Turribull, supra.) 6. Nor that the mandate was signed by a company firm, while the oath bore the debt to be due to the partners, without specifying the firm under which they carried on business — the oath and mandate being on one sheet. {TurnbuU, supra.) 260 ACT 1856, WITH NOTES. 7. Nor that the partner signed his own name to the mandate, instead of the firm's name. (Turnbull, supra; Glen, 24th Nov. 1843.) 8. A mandate to a writer in Aberdeen, erroneously designed as "advocate,'' held good, there being no question as to identity. (Dyce, 19th Dec. 1846.) 9. A mandate sustained which was granted by a majority of trustees as assignees of a debt, although their trust-deed not produced — they being inci- dentally mentioned as a quorum in the assignation. (Dods, 3d July 1847. N.B. — A majority of trustees in a gratuitous trust are now presumed to be a quorum. (24 & 25 Vict. c. 84, a. 1.) (6) 1. A mandate "to attend, vote, and act at all meetings under the sequestration, " does not authorise the mandatory to prosecute an appeal to the Court of Session against the Sheriff's deliverance recalling the resolution founded on his vote. [Ewing, 11th Jan. 1860.) 2. A mandate " to attend all meetings of the creditors, particularly any meeting which may be held for determining on any offer of composition, and to vote and act for me thereat as you may think proper, " does not autho- rise the mandatory to agree to a composition at the meeting, and thereafter to grant a letter to the effect that the bond of caution shall be held as null and void, and merely a matter of form, in order to comply with the Statute. (Morrism, 16th Feb. 1849.) (c) By the interpretation clause (s. 4), the word "vote,'' in addition to its ordinary meaning, includes a consent to any offer of composition, and to a discharge of the debtor, and also a dissent from such offer or discharge. LXIV. Any person who shall acquire after the date of the sequestration, otherwise than by succession or marriage (a), a debt due by the bankrupt, and the wife of the bankrupt and any trustee for her, shall not be entitled to vote in the election of trustee or commissioners, but in all other respects such person may be ranked as a creditor (6). (a) 1. This clause will not apply to a cautioner or co-obligant paying a debt after sequestration. [Hay, 5th Feb. 1850. ) 2. Nor to the holder of a bill, who had discounted the bill before the seques- tration, and retired it after the sequestration. {Lawrie, 7th June 1848 ; vide Watson, 27th June 1848.) (6) 1. An assignee does not require to lodge a new oath; intimation to trustee is enough. {Walker, 7th Feb. 1835.) 2. In Samson, 18th July 1851, the Sheriff rejected the right of a creditor to oppose bankrupt's discharge, as, although his trustee had lodged an oath, yet he had not done so siace his retrocession, but Court allowed him stUl to lodge an oath. 3d^ Special Rules as to Ranking for Payment of Dividends. LXV. To entitle any creditor who holds a security (a) over of securities ^^„ „^y^ pf ^jj^g estate of the bankrupt (J) to be ranked in order to witli n view J t. / to a divi- draw a dividend [c), he shall, on oath (d)^ put a specified value on such security, and deduct such value from his debt, and specify the balance ; and the trustee, vpith consent of the commissioners, shall be entitled to a conveyance or assignation of such security, at the expense of the estate, on payment of tbe value so specified Persons acquiring debts after sequestra- tion not to vote. Valuation dend. ACT 1856, WITH NOTES. 261 out of the first of the common fund, or to reserve to such creditor the full benefit of such security ; and in either case the creditor shall be ranked for and receive a dividend on the said balance, and no more, without prejudice to the amount of his debt in other respects (e). N.B. — The above is the same ass. 31 of id- 3 Vict. c. 41, except that it contains the words " uny part of," at the ieijiiining, whicJi the old section does not. (a) 1. As to interpretation of "security," vide a. 4. As to what are secu- rities, vide s. 59, note a. As to wortliless securities, I'idr s. 59, note c. 2. In claiming on a husband's estate, held bound to value and deduct his jus mariti over wife's heritage, which had been conveyed to Iiitti by wife and by the husband, together with all Ms marital rights. (Borthwick, 16th July 1844.) (S) 1. Where the creditor accepts a security from a third party, which (by a transaction to which the creditor is not a party) is assigned to the bankrupt prior to sequestration, and thus forms part of his estate, held that the creditor is not bound to value and deduct. {M'Olelland, 27th Feb. 1857.) 2. A party entaOed an estate upon his son, and died leaving personal debts. The son was sequestrated, and a personal creditor of the entailer, in claiming a dividend on the estate of the son as liable for his father's debts, was held bound to value and deduct as a security the right of payment out of the entailed estate. {Macleod, 1st ¥eh. 1851.) (c) This means a dividend as an ordinary creditor. If he merely claims his preference, he is not bound to value and deduct {Brown, 1st Feb. 1849). Opinion that if a creditor claim, and is allowed a preference which does not meet his claim, he may thereafter claim as an ordinary creditor. [Brown, supra.) id) Or affirmation. (13 & 14 Vict. c. 21, s. 4.) (e) At common law, a creditor who holds a security over the bankrupt's estate, or the security of other persons, or the property of such persons, is en- titled, when a judicial competition arises, whether in a sequestration or rank- ing and sale, or a process of distribution of proceeds of arrested or poinded effects, to rank on the estate or fund without any deduction of payments after the competition arises, and without any valuation or deduction of securities, and is also entitled to rank on the estates of all co-obligants for the full amount ; but only to the effect of getting 203. per pound. There cannot, however, be any double ranking, such as one to the creditor who has got » payment to account since the date of the bankruptcy /or the full amount, and another to a cautioner who has made the payment to the extent of the sum. he has paid. If, however, the security has been made available, or a payment made to ac- count by any co-obligant before the competition arises, then the debt is thus far reduced, and the creditor can only rank for the balance (2 B. C. 532 ; M'Dougcdl, 5th Jime 1801, D. ; Right in security, App., p. 1 ; Boswell, 15th Jan. 1841, 3 D. 352 ; Kirkcaldy, 8th Dec. 1841, 4 D. 202 ; Robertson, 3d July 1823 ; Mein, 6th March 1824 ; Farquharson, 15th May 1832 ; Hamilton, 6th Feb. 1841). These rules of the common law are limited by s. 65 above, and s. 66 below. LXVI. When a creditor claims on the estate of the partner of Value of a company in respect of a debt due by such company, the trustee "K™ on the estate of such partner shall, before ranking such creditor, company 262 ACT 1856, WITH NOTES. to be de- put a valuation (a) ou tlie estate of the company (b), and deduct cfaim' ^""" from the claim of such cireditor such estimated value, and rank againstpart- and pay to him a dividend only on the balance. nera, (a) In valuing the estate of a ioint-stock company, held that it falls to be valued as consisting of the whole subscribed capital, whether paid up or not. {M'CkUand, 19th June 1849.) (6) Where the bankruj^t, besides carrying on business here, was partner of a company in England, where the law is that a creditor of a company cannot rank on a partner's estate in competition with the partner's creditors, held, nevertheless, that a creditor in a biU by the company was entitled so to rank on the partner's estate in a sequestration, as this was the law of Scotland. {Lu^, 29th June 1843.) Election and Bemoval or Resignation of Trustee. AppoiEt- LXYII. The Lord Ordinary or the Sheriff, by the deliverance meeting to which awards the sequestration (a), shall appoint a meeting of the electatnis- creditors, to be held at a specified hour, on a specified day (J), be- ing not earlier than six nor later than twelve days (c) from the date of the Grazette notice (d) of sequestration having been awarded, at a convenient place (e) within the county of the Sheriff awarding sequestration, or to whom the sequestration is remitted, to elect a trustee or trustees in succession, and do the other acts herein- after proTided. (a) Vide s. 29 and 30. (6) TVhere from accidental circumstances a statutory meeting cannot be held at the time advertised, the Court may grant authority to hold another meeting. (Sogs, 27th Feb. 1S52.) (c) 1. Where in consequence of the detention of the packet, the proceedings in a sequestration did not reach Lochmaddy until after the period for holding the meeting, the bankrupt petitioned the Inner House to appoint a new meet- ing, and in respect of the difficulty of communication with Lochmaddy to allow twenty -five days to elapse before the meeting, which the Court granted, and expressed an opinion, but did not order, that intimation of the renewed meeting ought to be given in the Gazette. (M'Donald, 9th March 1861.) 2. As to computation of time, vide s. 5. (rf) 1. Vide s. -tS. 2. The Gazette referred to is the ' Edinburgh Gazette. ' (Act 1860, s. 5, postea. ) (e) The Court refused to appoint the meetings to take place in the office of a writer or other man of business, which had become a common and very pre- judicial practice lA. v. B., 14th Dec. 1847). Since this case occurred, the meetings have always been held in some public place. Procedure LXTIII. Creditors or their mandatories, qualified as aforesaid, at meeting |^ jj^ / \ ^gjemble at the time and place fixed for the election of tor olecuou v / o i i i • of trustee, trustee, with power to adjourn for such reasonable time as may seem fit, provided such adjournment do not postpone the meeting for the election of trustee beyond the limit of the period within which that meeting is by this Act appointed to be held (J) ; and ACT 1856, WITH NOTES. 263 if two or more creditors stall give notice to the Sheriff of the county, such Sheriff shall attend the meeting and adjourned meet- ings, and preside ; and the Sheriff Clerk or his Depute shall also attend, and mark the oaths and productions with his initials, and write the minutes in the presence of the meeting, and enter therein the names and designations of the creditors present, or of the mandatories of creditors, and the amount for which they claim, and any other circumstances which the presiding Sheriff shall judge fit, which minutes the presiding Sheriff shall sign (c) ; and the Clerk shall retain the oaths of the several claimants, sub- ject to the exhibition thereof in his hands, till the election shall be determined, when he shall deliver the same to the trustee ; and when the Sheriff is not present the creditors (d) shall elect a preses (e) and (if the Sheriff Clerk or a Depute be not present) a clerk (/) ; and the preses shall mark the oaths and productions vnth his initials (ff), and sign the minutes ; and the clerk shall, in the presence of the meeting, write the minutes, and enter there- in the names and designations of the creditors or mandatories, and the amount for which they claim, and any other circumstances relat- ing to the said meeting which the preses shall judge fit, which minutes the preses shall sign {h), and the creditors (i) or their mandatories who have produced their oaths and documents of debt, and who have been entered in the minutes, shall then and there elect {j ) a fit (k) person to be trustee, or two or more trus- tees, to act in succession (I), in case of non-acceptance (m), death, resignation, removal, or disqualification, and in the case of the sequestration of the estates of a company and of the partners, one trustee for all the estates, or separate trustees on the estates of the company and on the estates of all or each of the individual part- ners (w), or trustees in succession as aforesaid ; and it shall not be lawful to elect as trustee the bankrupt, or any person conjunct or confident with the bankrupt (o), or who holds an interest opposed to the general interest of the creditors (p), or whose residence is not within the jurisdiction of the Court of Session (g). N.B. — The corresponding provisions in previous Statutes are so far similar to the above section as to render the following cases quite applicable. (a) "Wliere no meeting can take place from want of advertiaement, &c. , vide s. 48, note b, and s. 67, note c. (J) Vide s. 67. (c) 1. The minutes of a meeting are the only evidence of the proceedings, no parole proof being admissible. (Ogilvie, 6tli Feb. 1810, F. C. ; Smith, 10th Jan. 1828, Mur.) 2. The word "Sheriflf" includes " Sixbstitute." (S. 4; mde a. 170, note e.) (d) This means creditors in value (s. 101) entitled to vote. (S. 49, note h ; also s. 64.) (e) An election was held null, there being no preses acting dimng the latter period of the meeting. (Anderson, 12th Deo. 1827.) 264 ACT 1856, WITH NOTES. (/) Where minutes did not show the election of a clerk, a new meeting was ordered. (Gascoyne, 19th Jan. 1848.) (g) A bin not having been marked by the preses, is not fatal to the vote. {Turntndl, 1st March 1828.) It had been produced at the first meeting. (h) Minutes were held probative, though not signed by the preses tiU after the meeting was dissolved. (Lea, 16th Jan. 1828.) (») 1. This means a majority in value (s. 101) entitled to vote. (S. 49.) 2. No creditor can vote who has acquii'ed the debt since the date of the sequestration otherwise than by sticcession or marriage. (S. 64. ) 3. A creditor, having an interest adverse to the general body of creditors, may nevertheless vote for trustee [Murray, 22d June 1821 ; Gamphell, 29th June 1825 ; Blyth, 8th July 1825) ; and the fact of being conjunct and con- fident with the bankrupt is also no objection per se (2 B. C. 443). ij) 1. Where no one would accept the office of trustee, the Court authorised the Sheriff Clerk to act. (Dunsmuir, 25th Nov. 1801, 2 B. C. 375.) 2. Where certain creditors proposed and voted for the election of one trus- tee for the estates of a company and partners who were all included in one sequestration, and no objection was stated, held too late for other creditors present, who were creditors of a partner, to propose afterwards a trustee for that partner's estate. (Cormach, 23d Nov. 1832.) 3. In electing a trustee, all that the creditors have to do is to vote ; it is for the Sheriff to declare the election. [Miller, 18th March 1858.) (k) 1. Held a fatal objection, that the candidate had promised a share of his commission to a creditor for his support. (M'Gowan, 13th Dec. 1808, F. C.) 2. The Court refused to confirm a trvistee under twenty-one years of age. [Threshie, 30th May 1815, P. C.) 3. Also an objection that he had written a letter stating that he would rank certain bills which were said to be forged. [Rohison, 23d Nov. 1827.) 4. Objection sustained that candidate had been endeavouring to get a pre- ference. (Corran, 24th Nov. 1827.) 5. Where an agreement between two candidates to share the commission had been entered into and acted on, held to be pactum Ulicitum, and that, on the trustee's default, the party sharing his commission was not liable qua partner. [M'Taggart's Bepreseniatives, 25th Jan. 1834.) 6. The candidate cannot be elected if he have a personal hostility to the bankrupt. (Lowe, 14th Feb. 1835.) 7. A candidate disqualified, who was mixed np with proceedings of the bankrupt and his friends, whereby a debt was purchased, canvassing carried on, and a creditor promised that he would not be a loser if the bankrupt got his discharge, all with a view to the candidate's election. [Lowe, supra. ) 8. A candidate was rejected who made certain alterations in two oaths and accounts — i. e., tore away the account annexed to one of the oaths and sub- stituted another in its place, and in another oath inserted certain words supplementing the designation of the bankrupt — after they were put into his hands as mandatory, though, as he alleged, it was done merely to correct cer- tain errors. [Eailton, 8th July 1835.) 9. Where a candidate in his own oath put an elusory value on a security, and in a letter which was recovered had acknowledged that he did so to secure the trusteeship, and that it was a common practice, held ineligible. (A. B., 10th June 1837.) ACT 1856, WITH NOTES. 265 10. It is also a good objection that the candidate acts occasionally as Sherief Clerk Depute. (Clark, 18th Nov. 1847.) 11. It does not appear that the fact of a party being under sequestration is an objection to him as trustee. [Richmond, 13th June 1850, 2 B. G. 372.) 12. Where a promise of employment to a creditor was given by a candidate, his election was set aside, and he was held disqualified for re-election. (Mann, 1st July 1857.) (l) If from any cause — such as non-acceptauce, disqualification, or the Hke ■ — the first-named trustee is not confirmed, the Court will at once confirm the next in succession, if qualified (vide 2 B. C. 375) ; but if once confirmed, then a meeting m\ist be held to devolve the office on the one next in succession, or elect a new trustee. (S. 74. ) (m) The trustee may decline to accept ; and where he does so, and no one has been elected in succession, the Court wiU order a new meeting for election of trustee, and Gazette notice to be given. (Mitchell, 28th Jan. 1860 ; vide Jeffray, 13th June 1828.) (n) No objection to a party being trustee on two estates that they have conflicting interests, whether they are the estates of a company and its partners (Sobison, 23d Nov. 1827), or the estates of neutral parties (Allan, 27th Feb. 1841). (o) Conjunct persons are strictly such as these — viz. , parents and children, brothers and sisters, fathers-in-law and sons-in-law, brothers-in-law and sisters- in-law, and also uncles and aunts, and nephews and nieces. It was thought doubtful whether a cousin was one. It is held that uncle-in-law and nephew- in-law are not conjunct. Confident persons are those who are in a situation of intimate and confidential intercourse with the bankrupt, such as partners in trade, servants, factors, and confidential men of business. (2 B. C. 187- ) (p) 1. Adverse interest must, of course, be proved by the objector. (Reid, 21st May 1836.) 2. Being a creditor is not per se an objection. (2 B. C. 369. ) 3. But objection sustained that the candidate had a large and disputed claim against the bankrupt ( TFiSiso», 11th March 1815). Also, where the candidate had been interim factor, had devolved the management on the bankrupt, and was liable in an accounting to the trustee {Mowhray, 13th Nov. 1821). Also, that the candidate had got securities under circumstances that required investigation (Bisset, 20th July 1841). Also, that the candidate had been voluntary trustee for the bankrupt, and was afterwards trustee in his cessio, and was liable in an accounting for his intromissions (M'Farlane, 29th Jan. 1848). 4. Held a good objection that the candidate is identified with one who is disqualified — e. gr. , the bankrupt's law-agent. (M'Tamah, 13th Nov. 1824.) 5. Where the candidate was law-agent of the principal creditor, who had an adverse interest, and was the nominee of that creditor : rejected. (Clark, 12th Jan. 1847 ; Campbell, 20th June 1840.) 6. Where a rejected candidate held a warrant of imprisonment against the trustee nominated in succession, the latter held disquahfied. (M'Farlane, supra.) 7. Where the candidate was the nominee of a creditor whose vote was sufficient to outvote aU the other creditors (he having, however, one other creditor to a small amount supporting him), and the claim being a vei-y sus- picious one, but still vaUd : held that such was no objection, even combined 266 ACT 1856, WITH NOTES. Judgment of Sheriff as to trus- tee. When Sheriff not present. witli the fact that the one was Clerk and the other Fiscal of the same court. (Colvilk, 21st Dec. 1850.) {q) No objection that the candidate resides at a considerable distance from the bankrupt property. {Kerr, 14th Nov. 1828; Forrester, 17th Feb. 1831.) LXIX. If the Sheriff be present at the election of trustee, and there be no competition for the office, or objection stated to the candidate or candidates, he shall, by a deliverance on the minutes, declare the person chosen by the creditors (a) to be trastee, and if there be competition, or objections to the candidate or candi- dates, such objections to the votes or candidates shall be stated at the meeting, and the Sheriff (6) may either forthwith decide thereon, or make avizandum, and he shall, if necessary, make a short note of the objections and of the answers, on which he shall, within four days (c) after the meeting, hear parties viva voce, and declare the person or persons trustee or trustees in suc- cession whom he shall find to have been duly elected, and state the grounds of his decision in a note, and the same, as well as such short note, shall form part of the process. (a) This means a majority in value (s. 101) of qualified creditors. (S. 49, note b ; also s. 64. ) (6) The word "Sheriff" includes " Sheriff- Substitute." (S. 4; vide s. 170, note e.) (c) Vide s. 5 as to computation of time. LXX. When the preses has been elected by the creditors, such preses (whether there be any competition or objection or not) shall forthwith report the proceedings to the Sheriff ; and the oaths of the several claimants shall, if the Sheriff Clerk or his Depute be present, remain in his possession, or, if he be not pre- sent, shall be transmitted to the Sheriff Clerk by the preses, to be retained by him till the trustee shall be finally appointed, when he shall deliver the same to the trustee ; and if there be no com- petition or objection the Sheriff shall declare the person or per- sons elected trustee or trustees in succession ; and if there be competition or objection (a) the parties (b) shall, within four days (c) from the date of the said meeting, lodge in the hands of the Sheriff Clerk short notes of objections {d), and the Sheriff shall forthwith hear parties thereon viva voce, and give his deci- sion (e), and state the grounds thereof in a note, which note, as well as such short notes, shall form part of the process (/). (a) A personal objection ought to be stated before the vote, as, if stated after the vote, although it be sustained, it merely leads to a new election {M'Leish, 23d Feb. 1822 ; Oorsan, 24th Nov. 1827 ; A. B., 10th June 1827). The same result where the personal objection emerges or supervenes after the vote — i. e., effect will be given to it, and a new election ordered (Patter- son, 26th Jan. 1811 ; WiUon, 14th Dec. 1811 ; Oorsan, supra) ; but a subse- quent protest is not necessary {Hunter, 14th Jaji. 1812). ACT 1856, WITH NOTES. 267 (b) The ' ' parties " may be individual creditors as well as candidates. {BaUUe, 15th November 1845.) (c) 1. Sunday is counted as one of the days. (Fouhls, 22d Dec. 1843, 16Jur. m.) 2. The word "Sheriff" includes "Sheriff-Substitute." (S. 4; vide s. 170, note e.) (d) 1. The objections must be specific, not general. (Lochhart, 12th July 1849 ; Foulds, 12th July 1851.) 2. A party who had, by mistake, lodged objections to the vote of John Brown & Co. , not entitled in an appeal to object to the vote of Colin Brown & Co. {M'Cubbin, 28th June 1850.) 3. Not incumbent on each claimant now to lodge a note of objections, though if he faU to do so he loses his right to be heard against his oppo- nent's votes. (Miller, 18th March 1858. ) 4. The note of objections need not be signed by a procurator, nor state by whom it is drawn ; and the Act of Sederunt 1839 applicable to Sheriflf Court processes does not apply to notes of objections. (Ibid. ) (e) 1. Where two competitors agreed to refer their claims to an arbiter who found them both ineligible, held binding on the parties, in respect that they might have declined to act, and therefore they could bind themselves to act or not to act according to the decision of a third party. [ffamUtcni, 29th May 1828.) 2. Where a claimant withdrew his vote during the competition, in virtue of which a candidate would have been successful, a new election was ordered. {Lawrie, 7th June 1848.) 3. The Sheriff ordered a new meeting to elect another trustee where he found the election nuU. (Mann, 1st July 1857.) 4. Where there was corrupt conduct alleged against a candidate in the procuring of votes, a proof was allowed. (Mann, supra.) 5. Where both candidates were declared ineligible, the Court of Session, on the petition of a creditor, appointed another meeting to be held for electing a trustee, and so fixed a day as to enable six days' notice to be given in the Gazette, but did not order such notice. (Struthers, 7th March 1861.) (/) As to expenses of competitions, vide Act 1857, s. 4, postea. LXXI. The judgment of the Sheriff (a) declaring the person Judgment or persons elected to be trustee or trustees in succession, shall be "^ ? ?" *, given with the least possible delay ; and such judgment (6) shall final, be final, and in no case subject to review in any Court or in any manner whatever. (a) The word "Sheriff" means either Depute or Substitute, but not both; hence an appeal from the latter to the former is not competent. (S. 170, note e.) (b) But any interlocutory judgment in the competition, if not declaring election, as also a judgment finding no election appealable. (Miller, 18th March 1858.) LXXII. The creditors [a) shall at the meeting for election of Caution to a trustee fix a sum for wliich the trustee shall find security for J"^ f™""* ""y his intromissions and performance of the duties and rules hereby 268 ACT 1856, WITH NOTES. enacted, and shall also decide on the sufficiency of the caution oflfered (6) ; and the person declared to be trustee shall forthwith lodge with the Sheriff Clerk a bond of caution, signed by the trustee and his cautioner (c), in the form of the Schedule (C.) here- unto annexed, which bond shall be furnished to him by the Sheriff Clerk : Provided, that nothing herein-before contained shall be held or construed to prevent the creditors accepting the bond of a guarantee society in lieu of the bond of caution afore- said (d). {a) 1. This includes mandatories (s. 63), though mandatories are not spe- cially mentioned, as in s. 68. 2. The sum is fixed by a majority in value (s. 101) of qualified creditors. (S. 49, note b.) {b) 1. The creditors cannot dispense with caution. (A. B., 19th Feb. 1833.) 2. If none offered, the candidate cannot be confirmed. {Miller, 17th July 1846.) 3. The same if the caution is not approved of. {M'Farlane, 29th Jan. 1848.) (c) 1. If no bond of caution is lodged, the candidate cannot be confirmed. (M'Kersy, 13th July 1841.) 2. A trustee became bankrupt, after the commissioners had audited his accounts and minuted in the sederunt-book the amount in his hands, which he acknowledged, and upon which he prepared a scheme of division, and advertised payment of the dividend : held that the new trustee could raise summary diligence against the obligants in the bond, and charge for the sum so fixed. (A. B., 29th June 1836.) 3. Held in a case under 33 Geo. III. c. 74, where the bond, like the form under this Act, was conceived in favour of the creditors, that the bankrupt, on becoming re-invested in his estates, was entitled to sue the representatives of the cautioner under the bond for the balance due by the trustee (Bell, 17th Dec. 1842). Note. — See s. 142, which seems now to put this beyond question. 4. In some old cases the cautioners were freed from liability in conse- quence of negUgence on the part of creditors and commissioners in superin- tending the tmstee (Duncan, 13th Dec. 1826 ; Mein, 19th Jan. 1830) ; and in others, where the negligence was not so great, the cautioner was not freed (Eadie, 3d Feb. 1829). But two cases in the House of Lords decided against the principle of freeing the cautioner on such grounds (M'Taggarts Reps., 24th Jan. 1834, and 16th AprU 1835 ; Creighton, 6th Feb. 1838 ; and Bobin- son, Ap. Ca. 131). And in the recent case of Biggar, 19th Nov. 1846, the fol- lowing issue was disallowed : "Whether the commissioners and creditors in the said sequestration, or either of them, wi'ongfully failed to superintend the conduct of the said Ptobert Wright, and to call him to account as trustee foresaid, to the loss and injmy of the defenders, or of the said George Tod?" But as to the following issue, the Court appointed a more specific statement, as applicable thereto, to be lodged : " Whether the pursuer, pending the sequestration of his estate, and while the said Robert Wright was trustee thereon, wrongfully connived at, or encouraged the malversation of the said trustee, or took benefit thereby?" (d) As some of these societies add conditions and limitations to their bonds ACT 1856, WITH NOTES. 269 not contained in Schedule (C), tte form proposed by tlie society should, per- haps, be submitted to and approved of by the meeting, otherwise the Court may have a difficulty in receiving such bond. LXXIII. On the decision of the Sheriff being given, declaring Act and the person elected trustee, and on a bond by the trustee and his ^^0^0^" cautioner being duly lodged as aforesaid, the Sheriff shall con- trustee. firm his election as trustee, which confirmation shall be final, and not subject to review in any Court or in any maimer whatever (a) ; and the Sheriff Clerk shall issue an act and warrant in the form of Schedule (D.) hereunto annexed to the trustee, and the trustee shall immediately transmit a copy of such act and warrant to the accountant, who shall make an entry of the name and designa- tion of the trustee in the Eegister of Sequestrations, and such act and warrant shall be an effectual title to the trustee to perform To be a the duties hereby imposed on him, and shall be evidence of his f'l?'^/^^ •„ right and title to the sequestrated estate, for the purposes of this Act ; and a copy of such act and warrant in favour of the trustee, purporting to be certified by the Sheriff Clerk, and to be authen- ticated by one of the Judges of the Court of Session, shall be received in all courts and places within England, Ireland, and Her Majesty's other dominions as prima facie evidence of the title of the trustee, without proof of the authenticity of the signa- tures or of the official character of the persons signing, and shall entitle the trustee to recover any property (6) belonging or debt due to the bankrupt, and to maintain actions, in the same way as the bankrupt might have done if his estate had not been sequestrated (c). (a) 1. Vide s. 71, note a. 2. The word "Sheriff" includes "Sheriff-Substitute." (S. 4; vides. 170, note e.) (5) Vide s. 102 ; vide Tkusteb's Eights. (c) 1. Where he was found liable in costs qua trustee, held no ground of suspension that he had no trust-funda. (Gibson, 25th May 1833 ; Scott, 21st Dec. 1826.) 2. Where a trustee sisted himself as pursuer, and attended an examination of havers, on which he became satisfied that the case was bad, and instantly abandoned it, held, in the circumstances, only liable for costs since the date of his appearance. (Muir, 14th Feb. 1843. ) 3. Where a trustee was sisted in a case, and found liable personally in cer- tain expenses, and qua trustee in the remainder, held, in the circumstances, that he was bound to pay the latter expenses preferably out of the funds that he had or ought to have in his hands. ( White, 2d March 1843.) 4. The trustee takes the risks of an ordinary litigant, and maybe subjected in the costs, whether incurred before or after he appeared in the case ( Torbet, 23d Feb. 1849), and not allowed to sist himself conditionally {Sandeman, 4th July 1835). 5. Where a summons had been raised and executed by the bankrupt prior 270 ACT 1856, WITH NOTES. to sequestration, held competent for the trustee to call it in his own name. [Gallie, 24th Jan. 1840.) Removal or LXXIV. A majority in number (a) and value of the creditors (J) Tt^?'"'' present (c) at any meeting duly called for the purpose {d\ may remove tlie trustee (e), or accept of his resignation (/) ; and one fourth of the creditors in value (g) may at any time apply by petition to the Lord Ordinary for removal of the trustee, and the Lord Ordinary shall order such petition to be served on the trus- tee, and intimated in the Gazette Qi) ; and if the Lord Ordinary shall be satisfied that sufficient reason has been shown (z), he shall remove the trustee, and appoint a meeting of the creditors to be held for devolving the estate on the trustee next in succes- Election of sion, Or electing a new trustee ; and if the trustee shall die, re- anewtrus- gign^ qj- \)q removed, or remain at any one time for three months furth of Scotland, any commissioner, or any creditor ranked or claiming and entitled to be ranked on the estate, may apply to the SheriflF for an order to hold a meeting for devolving the estate on the trustee next in succession, or electing a new trustee ; and the Sheriff shall grant warrant to hold such meeting at a certain time and place, which shall be advertised (y) in the Gazette by the commissioner or creditor so applying, and at the time and place so appointed the creditors at such meeting may devolve the estate on the trustee next in succession, or elect a new trustee (U) ; and when the estate is devolved on such trustee the creditors shall fix the amount for which he shall find security (Z), and on a bond being lodged the Sheriff shall confirm him, and an act and war- rant shall be issued and recorded in the same way and to the same effect as in the first election of a trustee (m) ; and in all cases of a new election of a trustee the procedure shall take place in the like manner as is herein-before provided in the case of the first election (ra) ; and the succeeding or new trustee shall be vested with the powers and perform the duties and be subject to the same rules as are herein-before provided, and shall call to ac- count the former trustee, or his heirs or representatives (o). (a) As to computing a majority in number, vide s. 101. (6) Creditors entitled to vote (s. 49, note 6). It does not mean creditors "ranked" (Henderson, 19th July 1849). (c) Whether voting or not. (S. 145, note h.) (d) Vide a. 98 and 99. (e) Without assigning any cause ( Wallace, 27th May 1824 ; Muir, 1st July 1828 ; Walker, 7th Feb. 1835). These decisions pronounced under the same clause in 54 Geo. III. c. 137, s. 71. (/) 1. It does not appear that he can resign, unless his resignation is ac- cepted as above. (2 B. C. 381.) 2. If the trustee, after resignation, apply for discharge and delivery of bond of caution, the Court of Lanarkshire is in the practice to grant it on evidence ACT 1856, ^VITH NOTES. 271 that he has aecounted to his successor in office, and after notice to the Ac- countant. ( ride a. 142 and 152.) (gr) 1. This means creditors entitled to vote (s. 49 and 14, note d). It does not mean creditors ranked {Henderson, 19th July 1849). 2. Under 54 Geo. III. c. 137, a single creditor might complain to the Court against the trustee, and the Court could remove him {Mitchell, 2d Dec. 1830); but this was under s. 71, which allowed one creditor to call the trustee "to answer for his conduct," which is not permitted by the corresponding clause in this Act, b. 86. The redress competent to any creditor seems to be through the Accountant in Bankruptcy (s. 159). (7i) If creditors withdraw, amy other creditors may be sisted. (Eichmond, 11th Feb. 1854.) («■) 1. Grave misconduct of any kind is a ground of removal. (2 B. C. 382.) 2. A trustee was removed for not making up states and consigning money in terms of the Statute, and defence repelled that the estate so small as not to be able to bear the expense of rigidly observing the Statute, and trus- tee held entitled to no commission, but not found liable in expenses, in re- spect of his acting in bonafde. {Aytoun, 2Sth May 1824.) 3. A trustee was not removed for slight irregularities — e.g., not lodging sederunt-book in due time, and not making up quarterly states, where no alteration had taken place in the affairs of the estate. {Swing, 8th July 1824, aff. 28th May 1826, 2 W. S. 19.) 4. And where both he and his cautioners were bankrupt. {Barton, 10th March 1831.) {j) Vide s. 99 as to Gazette notice. (i) Under the same clauses in the former Act (2 & 3 Vict. c. 41, s. 45 and 77) it was held that the creditors were entitled to elect a new trustee, al- though it was urged that they had no power to do so where the trustee in succession was willing to act, and was not disqualified. {M'Laggan, 17th July 1851.) {!) Vide s. 72 as to the security for trustee. (m) Vide s. 73. (re) Vide s. 68. (o) A summary application was held competent {Swanson, 5th March 1836). This was under 54 Geo. III. c. 137, s. 71, which says that the "new trustee shall immediately call to account his predecessors in office. " And where the trustee admitted a balance, "subject to a deduction of such farther payments as he can instruct," consignation ordered, or interim decree {Swanson, 9th July 1836). Election and Removal of Commissioners. LXXV. At the meeting for election of a trustee the creditors (a) Election of present (b) or their mandatories shall, after the election of the commis- trustee, elect three (c) commissioners (if there be so many creditors who have claimed) [ct), who shall be either creditors or mandato- ries of creditors, and the like proceedings shall take place in re- gard to their election as is provided in regard to the election of trustee (except that they shall not be bound to find security) (e) ; and tlie Sheriff shall decide who are the persons duly elected, and 272 ACT 1856, WITH NOTES. declare their election by a deliverance in the sederunt-book, which decision shall be finnl (/), and shall entitle them to act without further confirmation, and a majority of them shall be a quorum (g) : Provided that no person shall be eligible as a commissioner who is disqualified to be a trustee (h) ; and any mandatory who has been elected a commissioner shall lose that office, upon written intimation being sent by his constituent to the trustee that he has recalled the mandate, and the trustee shall immediately record the intimation in the sederunt-book ; and the trustee shall, in all cases where a commissioner has declined to act, or resigned, or become incapacitated, caU a meeting of creditors for the purpose of electing a new commissioner (i), and such commissioner shall be elected in manner herein-before provided (7). (a) As to creditors qualified to vote, vide s. 49, note b. (h) Vide s. 145, note h. (c) Though one of three commissioners decline to accept, the nomination does not fall. {Caddell, 8th July, 1819, 2 B. C. 386.) {d} If there are less than three creditors claiming on the estate, then so many as do claim wiU be elected. (2 B. C. 385.) (e) Vide s. 68, and subsequent sections. (/) 1. Not necessary, on appealing against the resolution of the creditors, to appeal likewise against the Sheriff's decision (Ounn, 12th Dec. 1850). De- cided under s. 56 and 127 of 2 & 3 Vict. e. 41, which are similar to s. 75 and 169 of this Act. 2. The word "Sheriff" includes "Sheriff-Substitute." (S. 4; vide a. 170, note e. ) (g) If only two elected or acting, they must concur. (2 B. C. 385. ) (A) Vide s. 68. (i) Vide s. 98 and 99. {]) Held that commissioners are entitled to no gratuity. {Forrester' a Cre- ditors, 2d June 1798, D. 1252.) Removal of LXXVI. A majority (a) of the creditors (J) assembled (c) at any meeting duly called for that purpose (d) may remove a com- missioner (e), and may elect another in his place, in manner before directed. (a) Vide s. 101. (6) Creditors qualified. (S. 49.) (c) Vide a. 145, note /«. (d) Vide s. 98 and 99. (e) It is questionable if a single creditor can apply for removal of a com- missioner. Under 54 Geo. III. c. 137, s. 71, such an appplication was com- petent {Sanders, 8th Feb. 1823 ; Parlane, 28th June 1825) ; but it was only so held because the commissioners were declared amenable to the Court, at the instance of any party interested, "to answer for their conduct." That clause is not in the present Act. It would seem that a commissioner may only be commis- ACT 1856, WITH NOTES. 273 removed by a majority of the creditors, in terms of s. 76, or througli the ac- countant (s. 159). Protection and Allowance to Bankrupt. LXXVII. At tlie meeting for the election of a trustee, or at Protection tlie meeting held after the examination of the bankrupt, or at any jLt™ meeting called for the purpose (a), the majority in number (6) and value of the creditors (c) present (d) may resolve that the personal protection of the bankrupt ought to be renewed for such time (e) as they may think fit, and in such case the trustee (/) sliall {g) apply (A) to the Sheriff, who shall (/) renew the protection (y), and the deliverance by him renewing the same, or an extract thereof signed by the Sheriff Clerk, sliall have the same effect as the ori- ginal warrant of protection. (a) Vide s. 98 and 9^, as to calling meetings. (6) As to computing a majority in number, vide s. 101. (c) Qualified creditors. (S. 49.) (d) Whether voting or not. ( Vide s. 145, note h.) (e) 1. Where protection voted till "the meeting to be held after the examin- ation of the bankrupt" (s. 96), held to mean the first meeting after the examination was concluded. (M'Kellar, 12th July 1861.) 2. But where the protection was voted ' ' until the period of the second general meeting of creditors," and the Sheriffs warrant granted protection " until the said second general meeting of creditors after his examination," and the examination was not concluded at the second statutory meeting, held that the warrant must be construed by the resolution, and accordingly that the protection had expired when the second statutory meeting took place. {Walker, 7th Dec. 1861.) (f) 1. In Douglas, 17th Dec. 1842, the petition was at the instance of the bankrupt, with consent of trustee and a majonty of creditors. 2. Where Sheriff has granted protection on trustee's petition, and Lord Ordinary recalled it, the bankrupt has right to reclaim. (Murray, 15th Nov. 1856; MUlar, 27th Nov. 1862, Jur.) 3. Held to be compliance with the Act that the trustee was ordained under a petition, at the instance of the bankrupt and two commissioners, to apply for renewal, and that he reported to the Sheriff a petition, at the same in- stance, for renewal, which was granted. (Inglis, 13th July 1859.) (g) Where renewal of protection was voted unanimously by the creditors at a meeting, but the trustee failed to apply for the Sheriff's warrant, held, nevertheless, that the protection was valid in a question with a creditor who concurred in the vote. [M'Kellar, supra.) (h) A report by the trustee is all that seems necessary. [Millar, supra.) (i) 1. Under the same section in the last Act (2 & 3 Vict. c. 41, s. 58), it was held, that if there be a statutory majority, and the application is duly made, it is imperative on the Sheriff to renew the protection. (Hodge, 4th Dec. 1855 ; vide Millar, supra.) 2. The word "Sheriff" includes "Sheriff-Substitute." (S.4; vide S.170,note e.) (j) An appeal against the resolution to grant protection, if there be opposi- tion, at one time seemed necessary. In Douglas, 17th Dee. 1842, where S 274 ACT 1856, "WITH NOTES. Allowance to bank- rupt. Record of abbreviate of his con- firmation. there were opposing votes and protests, the Sheriff superseded eonsideratiou of the petition tOl the appeal days were expired. In Murray, 15th Nov. 1856, both appeal and petition were raised and conjoined. But it is now decided that no appeal is necessary, and that creditors may oppose the peti- tion without any appeal. (Millar, supra.) LXXVIII. At the meeting for election of a trustee, or at the meeting held after the examination of the bankrupt, or at any meeting called for the purpose (a), four-fifths in value of the creditors (6) present (c) may authorise payment from time to time to the bankrupt, or to the partners of a company (if the seques- tration be of a company estate), of such sum out of the estate as they shall think proper for sustenance, until the period assigned for payment of the second dividend (d), but such allowance shall not lexceed £3, 3s. per week to the bankrupt, or to each indi- vidual partner of a company, from the date of sequestration to the period aforesaid, and no allowance shall be given if the bank- rupt shall not have complied with the provisions of this Act : Provided always, that if it shall at any time be the opinion of a majority (e) of the creditors present at a regular meeting that it is for the interest of the estate that a special allowance should be further made to the bankrupt, and if the Accountant in Bank- ruptcy shall report in its favour, it shall be competent for the Lord Ordinary or the Court, on application by the trustee, with the said concurrence of creditors, and report by the accountant, to award such allowance, which shall then be payable out of the estate. (a) As to calling meetings, vide s. 98 and 99. (6) Qualified creditors. (8.49.) (c) Whether voting or not. (S. 145, note h.) (d) The period assigned for payment of the second dividend is ten months after the awarding of the sequestration. (S. 131.) (f) A majority in value. (S. 101.) Duties of Trustee and Commissioners. LXXIX. The trustee, within twenty-one days (a) after his election is confirmed, shall present an abbreviate, signed by him or his agent (J), in the form of Schedule (E. No. 1) hereunto an- nexed, to the Keeper of the Eegister of Abbreviates of Adjudi- cations, who shall forthwith record the same, and write and subscribe a certificate on the said abbreviate in the form specified in the said Schedule (E. No. 2) ; and the like proceeding shall take place within twenty-one days after the election of each new trustee shall be confirmed. (a) 1. Where the abbreviate was not lodged in due time, the Coiut; granted warrant to the keeper to receive and record it : held that this did not invali- date the trustee's right to sell the heritage, nor warrant a purchaser in refusing payment of the price. [Munro, 21st June 1851.) 2. The Court again granted warrant for recording the abbreviate which ACT 185G, WITH NOTES. 275 had been neglected, reserving all objections to its validity at the instance of any party interested, but directed tbat the exjjenses should not come against the estate. (A. B., 21st Dec. 1S55.) 3. Where the twenty-one days had elapsed, the Court granted warrant to re- cord theabbreviate.underreservation of all objections. (Martin, ISthNov. 1857.) (J) 1. The trustee has the appointment of the law-agent. (Baillie, 13th June 1822.) 2. The agent is not an officer in the sequestration, and is not liable for the trustee's neglect of duty. [Qourlay, 15th Jime 1827.) 3. A sununary petition by a trustee to compel agent to account for intro- missions, &c., is not competent (Berry, 12th Feb. 1830). But where an agent carried through ■-, poinding and sale, a summaiy petition for payment of the proceeds, under deduction of any counter account due to the agent, was held competent (Oraham, 20th Feb. 1850). A summary petition for delivery of titles is competent (Paul, 2d Feb. 1826). 4. The trustee acting as law-agent cannot exact fees. It is even question- able if a commissioner can. ( Vide s. 85, note c.) LXXS. The trustee shall, as soon as may be after his appoint- Trustee to ment, take possession of the bankrupt's estate and effects, and of *'''^? P"' ', SGSSlOIl 01 his title-deeds, books, bUls, vouchers, and other papers and docu- estate and ments, and also make up an inventory of such estate and eifects, '""'H ='°d TTlfLK.6 11T1 and a valuation showing the estimated value and the annual inventory, revenue thereof, and shall forthvyith transmit copies of such inventory and valuation to the accountant. LXXXI. The bankrupt shall make up, and, at the meeting ap- Bankrupt pointed for the election of a trustee, deliver to the clerk of such *" make up &lj3it6 of nm meeting, a state of his affairs, specifying his whole property, affairs; wherever situated, the property in expectancy or to which he may have an eventual right, the names and designations of his creditors and debtors, and the debts due by and to him (a), and a rental of his heritable property, which state and rental shall be subscribed by the bankrupt, and shall then be delivered to the trustee, and the same shall be engrossed in a sederunt-book to be kept by the trustee ; and the bankrupt shall at all times give and to give every information and assistance necessary to enable the trustee and srantT" to execute his duty ; and if the bankrupt fail to do so, or to deeds. grant any deed which may be requisite for the recovery or dis- posal of his estate, the trustee may apply to the Sheriff to com- pel him to give such information and assistance, and to grant such deeds (b), under the penalty of imprisonment and of forfei- ture of the benefit of this Act, and unless cause be shown to the contrary the Sheriff shall issue a warrant of imprisonment accordingly (c). (a) 1. Under this clause in 54 Geo. III. c. 137, s. 25, held that an omission to include a debt in his state of affairs which was duly sworn to, did not bar the bankrupt's right to sue for it on his reinvestiture. (Baillie, 14th Feb. 18.35.) 2. The same held under 2 & 3 Vict. c. 41, s. 52, which on this point is 276 ACT 1856, WITH NOTES. the same as the above (York, 5th July 1861). The omission, however, with other circumstances, was considered so siispicious as to admit of proo£ prout de jure to cut down a bill. (6) In aU proceedings against the bankrupt, the trustee must foUow the course prescribed by the Statute. In one case, an action at his instance against the bankrupt for count and reckoning and payment was- dismissed, as it was not authorised by the Statute. (Aitken, 6th June 1809, F. C.) (c) The bankrupt, in the event of being so imprisoned, woidd not be en- titled to aUment. (E. 4. 3. 28.) Trustee to LXXXII. The trustee (a) shall manage, realise, and recover fund™' the estate belonging to the bankrupt, wherever situated, and convert the same into money (6), according to the directions (c) given by the creditors {d) at any meeting (e), and if no such directions are given, he shall do so with the advice of the com- missioners (/) ; and he shall lodge all money which he shall receive in such bank {cj) as the majority of the creditors in num- ber and value at any general meeting shall appoint (h\ and failing such appointment, in any joint -stock bank of issue in Scotland (provided that the bank be not one in which .the trustee shall be an acting partner, manager, or cashier) ; and the money shall be lodged in the name of the trustee, in his official charac- ter tinder this Act {i), at the highest rate of interest which can be procured for the same ; and such bank shall, once yearly at least, balance such account, and acciimulate the interest with the principal sum, so that both shall thereafter bear interest as prin- cipal ; and if such bank fail to do so such bank shall be liable to account as if such interest had been so accumulated. * (a) It was held incompetent for a majority of creditors to send the bank- rupt abroad to recover debts. (Turner, 8th June 1822.) (6) 1. Sale of Heritable Estate. — This section must be read along with s. 96, 105, 113, 114, 115, 136. In selling the heritable estate, there are three modes pointed out by these sections — viz., judicial sale, sale by auction, and private sale. The conditions under which these different modes of sale are to be carried out are specifically set down, and cannot be deviated from without rendering the sales a uulUty. (1) Judicial sale may become advisable when there are conflicting securities or a complicated mode of ranking, or when a clear title is wished. (2) A public voluntary sale may be brought about by the trustee, but if there be a preferable heritable creditor in the field, he cannot (s. 114) sell at a lower upset jirice than wUl cover the credi- tor's debt, principal, interest, and expenses. The trustee cannot prohibit a heritable creditor, with power of sale, from selling, unless he himself begin first, or there is undue delay in the creditor's proceedings (s. 114). (3) A private sale is also competent to the trustee, with consent of the heritable creditor, if any, and the accountant and a majority in number and value of the creditors. There is no express prohibition against a private sale by the trustee alone ; but it is obvious that where a Statute confers a power on a public functionary, and a mode for exercising that power, it is iacumbent on him to foUow that mode in preference to any other (vide Crichton, infra). ACT 1856, WITH NOTES. 277 2. Sale of Jlovedble Estate. — It is more doubtful if a private sale of the moveable estate is incompetent. There is no express enactment pointing out a mode of selling the moveables privately, as in the case of heritage, and con- sequently the argument against that mode of selling moveables is not so strong. But there is s. 136, which points out sale by auction as the mode of selling the heritable and moveable estate, and outstanding debts which are stdl vmdisposed of on the lapse of twelve months from the date of the seques- tration ; and from this section it may perhaps be inferred that the general mode of sale contemplated by the Legislature was sale by auction. Besides, public sale is the only mode of sale sanctioned by courts of law, and if it was meant to give the trustee and commissioners, or creditors, such a power as that of private sale, it ought to have been expressly given. The late Statutes were likewise sUent on the subject, but, nevertheless, it is sometimes the case that trustees adopt the private mode of selling the moveable assets. A distinction may here be drawn between stock-in-trade and debts. Where a body of creditors resolve on a private sale of the stock, that resolution be- comes final, it not appealed against ; and, according to the principle laid down in the analogous case of Bailie, 15th Nov. 1845, it would likely not be considered such an excess of power on the part of the creditors as to render the sale reducible. But where such a sale is of debts, the assignee's title wUl not be sustained in a court of law. In Crichtoii, 25th June 1833, the trustee and commissioners, with the subsequent sanction of the creditors, sold privately a debt due to the estate. The assignee raised an action for pay- ment, and he was met with the objection, that a private sale was not autho- ised by the Act 54 Geo. III. u. 137, ». 56. He answered that there was no prohibition in the Act against a private sale of debts, although it gave the creditors power, on the lapse of two years, to sell inter alia the debts by auction. The assignee's title was held bad, as the sale was illegal. This doctrine has now been confirmed by Robertson, 20th Feb. 1857, where the sale of a debt was carried through privately by the trustee with consent of the com- missioners. This case occurred imder 2 & 3 Vict. c. 41, but that Statute is on this point substantially the same as the present Act. In Low, 20th Dec. 1836, a trustee tried to get the Court to sanction a sale by private bargain of stock, &c. , but the Court would not interfere — leaving the trustee to act on his own responsibility. 3. Abandonment and Compromise of Claims. — As creditors may either pro- secute, compound (s. 176), or abandon a claim, so, if they resolve to abandon a claim, neither the trustee, nor any creditor in his name, can prosecute for payment as long as the resolution stands unrecalled {Gray, 6th Feb. 1850). It is of course competent to appeal against the resolution (s. 169), and as the appeal will bring up the merits of the resolution {Somerville, 10th Feb. 1859), the Court might, on the principle of certain old cases (Gray, 29th June 1821 ; Garden, 3d July 1823 ; Sprott, 5th July 1828), aUow a minority of creditors, or a single creditor, on guaranteeing the estate and trustee against risk, to prosecute an abandoned claim in the name of the trustee ; and perhaps also, on the principle of Spence, 13th Dec. 1832, allow a minority, on payment of a sum which the majority had resolved to accept as a compromise of a claim, to have an assignation of the claim, and prosecute it, giving security to the estate and the trustee against loss, and agreeing to render up any surplus after getting pajonent of their debts. The bankrupt may also take up abandoned rights (vide s. 29, note/). (c) Vide s. 96 as to directions by creditors to trustees. 278 ACT 1856, WITH NOTES. Penalty on trustee re- taining funds. Trustee to keep a se- derunt- book, and send copy of accounts to account- ant. {d) This means a majority in value (s. 101) of qualified creditors (s. 49, note 6). (e) Whether called for the purpose or not. (S. 99 ; vide also s. 96. ) (/) Vide interpretation clause (s. 4), as to majority of commissioners acting. {g) A resolution of creditors to lodge the money in the hands of individuals who were not bankers, held illegal. {Play/air, 24th Dec. 1788, D. 1251.) {h) Vide s. 83, as to penalty for keeping up funds. (i) If the trustee lodges the money in his official character, he is not liable for failure of the bank, but if he lodges it in his private account, then he is liable. If, again, the trustee faUs, then the money lodged in his name qua trustee belongs to the estate ; but if in his private capacity, it belongs to his own creditors. (2 B. C. 378.) LXXXIII. If the trustee sliall keep in his hands any sum ex- ceeding fifty pounds (a) belonging to the estate for more than ten days, he shall pay interest to the creditors (b) at the rate of twenty, pounds per centum per annum on the excess of such sum above fifty pounds for such time as the same shall be in his hands beyond ten days (c) ; and unless the money has been so kept from innocent causes, the trustee shall be dismissed from his office, upon petition to the Lord Ordinary or Sheriff by any credi- tor (d), and have no claim to remuneration, and shall be liable in expenses. (o) 1. Held not liable in penal interest where he applied the funds of a partner's estate towards the expenses of managing the company's estate, the creditors on both estates being the same. (Ferrier, 8th July 1835. ) 2. In ascertaining the sum in the trustee's hands, held that if he makes erroneous payments in mala fide, he shall be debited with interest as if they had not been made, but otherwise if made bona fide. (Maben, 3d June 1837.) (5) Entitled to be ranked. (S. 121.) (c) Under this clause in 54 Geo. III. c. 137, o. 43, held that in the event of a trustee's removal from office, he is liable in penal interest up to that period, but.in simple interest after that period on the accumulated sum. (Johnston, 18th Feb. 1826.) (d) A quaHfied creditor. (S. 49, note h. ) LXXXIV. The trustee (a) shall keep a sederunt-book (6), in which he shall record all minutes of creditors and of commission- ers, states of accounts, reports, and aU the proceedings necessary to give a correct view of the management of the estate, and he shall also keep regular accounts of the affairs of the estate, and transmit to the Accountant in Bankruptcy, before each of the periods herein assigned for payment of a dividend (c), a copy, cer- tified by himself, of such accounts, in so far as not previously transmitted, and such copies shall be preserved in the office of the accountant ; and the sederunt-book and accounts shall be patent to the commissioners and to the creditors or their agents. commis- sioners. ACT 185G, WITH NOTES. 279 at all times : Provided always, that -wlien any document is of a confidential nature (such as the opinion of counsel on any matter aflFecting the interest of the creditors on the estate) the trustee shall not be bound to insert it in the sederunt-book, or to exhibit it to any other person than the commissioners. (a) In an action by tte law-agent against the trustee for his aocoiint, and where the trustee declined to pay unless the agent gave up the sederunt-book, which he denied having in his hands, held xmder this clause in 2 & 3 Vict. c. 41, s. 63, that the presumption, even in a question with the law-agent, is that the sederunt-book is in the trustee's hands. ( Wotherspoon, 17th Nov. 1843.) (6) 1. The Court refused permission to make up a new sederunt-book when the old one was lost. (Christie, 25th Jan. 1827.) 2. The sederunt-book is no evidence in favour of the trustee (Mansfield, 15th March 1835), although it may be used against him. (c) Vide s. 129, 131, 132. LXXXV. The commissioners shall superintend the proceed- Duties of ings of the trustee, concur with him in submissions and trans- actions (a), give their advice and assistance relative to the management of the estate, decide as to paying or postponing payment of a dividend, and may assemble at any time (J) to ascertain the situation of the bankrupt estate, and any one of them may make such report as he may think proper to a general meeting of the creditors (c). (a) Vide s. 176. (6) There is no statutory provision as to meetings of commissioners, whether as to time, mode, or purpose of calling such meetings. (c) 1. Question whether a commissioner can act as law-agent for the trustee, and claim his account against the estate, but held that it is not com- petent for the bankrupt to take that objection against the agent's costs of a litigation with the estate in which the bankrupt was unsuccessfuL (Lear- ■mmiih, 13th Feb. 1858.) 2. Incompetent for the commissioners to appoint a committee to assist the trustee. (Thomson, 2d July 1859.) 3. The commissioners are liable to account for intromissions and manage- ment. (Fi(ic next section.) LXXXVI. The judicial factor, the trustee, and commissioners judicial shall be amenable to the Lord Ordinary and to the Sheriff (a), factor, trus- although resident beyond the territory of the Sheriflf (6), at the commts- instance of any party interested, to account for their intromis- sioners sions and management (c), by petition served on them ; and in ^"Lord "^ case it shall appear that such application ought not to have been Ordinary made, the party complained of shall be entitled to his full ex- Sheriff. penses, to be either retained out of the funds, or recovered from the party complaining, as the Lord Ordinary or the Sheriff shall direct. 280 ACT "1856, WITH NOTES. (a) Or Sheriiff-Substitute. (S. 4; vide a. 170, note e.) (b) Citation beyond the county of the Sheriff must be made on indorsation by Sheriff-Clerk under the Act 1 & 2 Vict. c. 119, s. 24. (c) Where, after the lapse of twenty years, a trustee was called to account by a creditor in respect he had not raised a reduction of certain prefer- ences, and had improperly admitted certain claims, and had also retained large sums in his hands, held not relevant on account of the delay, except as to the • retention of sums above fifty pounds in his hands, as to which he was found liable in that creditor's share of the penal interest thereon. {M'LacMan, 23d Nov. 1830.) Examination of Bankrupt. Sheriff to LXXXVII. The trustee shall, within eight days (a) after the name a day ,Jate of the act and warrant confirming him, apply to the rupfs ex- Sheriff to name a day for the public examination of the bank- amination. rupt, and the Sheriff (J) shall issue his warrant for the bankrupt to attend for such examination within the Sheriff Court House on a specified day and at a specified hour, being not sooner than seven days nor lat-er than fourteen days from the date of the Sheriff's warrant ; and on the Sheriff granting such warrant (c) the trustee shall publish an advertisement, in terms of Schedule (F.) hereunto annexed, in the Gazette (d), and send by post or otherwise special notice to every creditor who has lodged a claim, or who may be named in the bankrupt's state of affairs, intimating his name and designation, his election as trustee, the day, hour, and place fixed for the examination of the banknipt, and also a specified day, being not sooner than seven days nor later than fourteen days after the day appointed for the examina- tion of the bankrupt (e), and in the sequestration of the estates of a deceased debtor a meeting of creditors shall be called by the trustee by public advertisement and notice to each creditor (/), to be held not later than fourteen days after the date of such ad- vertisement, and also the hour and place for holding a second meeting of the creditors, and shall also in the same notice inti- mate the period within which claims should be lodged {g). (a) As to comiratation of time, vide s. 5. (6) Or Sheriff-Substitute. (S. 4; vide s. 170, note e.) (c) The Act does not specify how long before the examination the notice in the Gazette must be given. It must certainly be before it. {6) 'Edinburgh Gazette.' (S. 4) (e) The meaning of this part of the section is far from being clear. Cer- tainly it would have been better if the section of the late Act, o. G5, had been adopted, for, by the aid of a parenthesis to provide for the case of its being the sequestration of a deceased debtor, the reading of that section was quite in- telligible. By introducing a similar parenthesis into the above section, the meaning would be improved : "And on the Sheriff granting such warrant the trustee shall publish an advertisement, in terms of Schedule (F.) hereunto annexed, in the Gazette, and send by post or otherwise special notice to ACT 1856, WITH NOTES. 281 every creditor who has lodged a claim, or who may be named in the bank- rupt's state of affairs, intimating his name and designation, his election as trustee, the day, hour, and place lixed for the examination of the bankrupt, and Eilso a specified day, being not sooner than seven days nor later than f oiu'- teen days after the day appointed for the examination of the bankru^it {and in the sequestration of the estates of a deceased debtor a meeting of creditors shall be called by the trustee by public advertisement and notice to each cre- ditoi-, to be held not later than fourteen days after the date of such advertise- ment), and also the hour and place for holding a second meeting of the creditors, and shall also in the same notice intimate the period within which claims should be lodged. " (/) This is obviously an abbreviation of the preceding clause, "every creditor who has lodged a claim, or who may be named in the bankrupt's state of aflFairs." ig) 1. Vide s. 123 and 129. 2. In the event of an offer of comjiosition being entertained at the meeting for election of trustee, the above section to be read along with s. 137. LXXXVIII. It shall be competent for tbe Sheriff (a) to grant sjieriff may a warrant to apprehend the bankrupt, and bring him before the sr™' '^^^- Sheriff for examination ; and if the bankrupt be imprisoned for bankrupt a debt or other civil obligation within Scotland, the Sheriff may for.exami- grant warrant to magistrates and gaolers, on receiving a dupli- cate of such warrant, and an acknowledgment for the person of the bankrupt, to deliver him to the officer presenting the same, and they shall do so accordingly ; and the Sheriff may also grant warrant to bring the bankrupt from the Sanctuary, which war- rant shall protect him against arrest for debt or other civil obli- gation while under examination, and on the way to and from the place of examination, and shall be sufficient authority, either within or beyond the territoiy of the Sheriff in Scotland, to mes- senger^at-arms, and to the officers of the Sheriff, to apprehend, transmit, detain, and imprison, and to gaolers to deliver up, receive, and detain, the bankrupt, until his examination is con- cluded, and also for his re-transmission after examination to the gaol from which he was delivered up, and re-imprisonment therein ; and if the bankrupt cannot be brought from gaol or the Sanctuary, or cannot be examined by the Sheriff there, or is by a lawful cause prevented from attending at the time and place ap- pointed, or is in custody on a criminal charge, or is abroad, the Sheriff may grant commission to take the examination ; and the Sheriff or commissioner may, if he see cause, adjourn the examin- ation of the bankrupt to an early day, to be then fixed ; and the Sheriff may, on the application of the trustee, order tlie bankrupt to be examined as often as he shall see fit (6). (a) Or SheriflF-Substitute. (S. 4 ; vide s. 170, note e.) (h) 1. The groxmds of a petition for re-examiuatiou of the bankrupt miLst be stated. (Sormnci-vilU, lOth Feb. 1859.) 282 ACT 1854, WITH NOTES. Apprehen- sion and transmis- sion of the bankrupt when out of Scotland. Examina- tion of bankrupt's wife and others. 2. It may take place after tlie first examination is closed and oath admini- stered. {Sommerville, lOth Feb. 1859.) 3. Tlie trustee and commissioners are the judges of the propriety of apply- ing for re-examination of the bankrupt, subject to the control of the creditors. (Ibid.) 4. Any creditor making a motion at a meeting for re-examination, which is negatived, may bring the resolution under the review of the Court on its merits. (Ibid.) LXXXIX. If the bankrupt be in any part of Great Britain and Ireland other than Scotland, the Lord Ordinary may, on petition by the trustee, grant warrant to all judges, magistrates, ju.stices of the peace, and oflBcers of the law, to apprehend and transmit him to the place of his examination, and to enforce the same, which they are hereby required to do ; and if the bankrupt be in prison or custody, the Lord Ordinary may grant warrant as aforesaid to magistrates and gaolers, upon receiving a duplicate of such warrant, and an acknowledgment for the person of the bankrupt, to deliver him to the messenger or ofScer presenting such warrant, which they shall do accordingly ; and such warrant shall be suf- ficient authority for the apprehension, transmission, detention, and imprisonment of the bankrupt (when necessary for his safe custody), and for his re-transmission after examination to and re- imprisonment in the prison or custody from which he was deli- vered up. XG. The Sheriff (a) may, at any time (6), on the application of the trustee (c), order an examination of the bankrupt's wife and family, clerks, servants, factors, law-agents (d), and others, who can give information relative to his estate (e), on oath (/), and issue his warrant requiring such persons to appear ; and if they refuse or neglect to appear, when duly summoned, the Sheriff may issue another warrant to apprehend the person so fajling to appear: Provided that when such person is not the bankrupt, nor his wife, nor one of his family, nor his clerk or servant, no warrant for apprehension shall be issued until the expiration of eight days from the service of the first warrant, unless the trustee shall, on oath, specify a reasonable cause of belief that such person intends to leave the country to avoid the examination, in which case the Sheriff may forthwith issue such warrant; which several warrants shall be sufficient to authorise messengers-at- arms, or the officers of the Sheriff, to execute the same, either within or without the territory of the Sheriff in Scotland, as aforesaid; and if any person liable to be examined cannot attend, the Sheriff may grant commission to take his examina- tion (ff) ; and such examination, whether by the Sheriff or by a commissioner, may be adjourned, if it shall seem fit, to an early day, to be then fixed : Provided that persons, other than the bankrupt, summoned to attend for examination shall be entitled ACT 1856, WITH NOTES. 283 to such allowances as witnesses are in other oases entitled to, and the amount of which, if disputed, shall be fixed by the Sheriff. N.B. — Tlie above section is so far similar to the late Act as to render the fol- lowing cases quite applicable. {a) Or Sheriff-Substitute. (S. 4; vides. 170, note e.) (6) A factor of the bankrupt was re-examined even after the lapse of two or three years from his first examination, and although it was not averred that any new discoveries had since been made to call for re-examination. (Clark, 8th July 1848.) (c) As to control over trustee in the exercise of his discretionary power to have parties examined, vide s. 88, note h. {d) The agent held liable to examination although he had entered into a transaction with the bankrupt and was to be examined regarding it (A. B. , 4th June 1858). As to confidential commimications, vide s. 91, note 6. (e) 1. A creditor cannot be examined as to his claim (Bidpath, 20th July 1844). Vide s. 126 as to trustee's power to examine him when adjudicating on claims for a dividend. 2. But the bankrupt's brother, who supplied the bankrupt with goods and had the pass-book containing a record of their dealings, ordered to produce same and to be examined anent it — notwithstanding that it might throw light upon his own claim on the estate. (Pollock, 3d Dec. 1844.) 3. Though one petition is pending for the examination of third parties, it is not incompetent for the trustee to present another against the same parties. (Kerr, 16th Dec. 1847.) 4. And on the principle that a claimant cannot be so examined, the law- agent of the claimant cannot be examined. (Paul, 21st Feb. 1855.) 6. Nor the manager of a company as to the company's affairs, though the bankrupt was a shareholder. (Ridpath, supra. ) 6. In one case it was held that the trustee, in examining third parties, was bound to state circumstances inferring that they can give information relative to the estate. (Ridpath, supra.) 7. But it has since been held enougb if the trustee states that he has reason to believe that the party can give such information, without condescending on any circumstances inferring knowledge. (Burnet, 14th June 1855.) (/) Vide s. 21, note g. (g) Where a commission is granted in the Sheriff Court, "the commis- sioner, if the proof is to be taken within Scotland, shall either be the clerk of court, his acting depute, a practitioner before any court of law of at least three years' standing, a justice of the peace, or other magistrate." (Act of Sederunt 1839.) XCI. The bankrupt and such other persons shall (a) answer Bankrupt all lawful (b) questions relating to the affairs of the bankrupt ; ^^g"*"" and the Sheriff may order such persons to produce for inspection swer lawful any books of account, papers, deeds, writings, or other docu- 'i"?'''"!^^^. ments in their custody relative to the bankrupt's affairs, and documenta. cause the same, or copies thereof, to be delivered to the trustee. (a) Vide s. 93 as to penalty for refusal. (6) 1. Examinations under the Statute are not cases of evidence, but mere 284 ACT 1856, WITH KOTES. inquiries or investigations, and therefore are not subject to the strict rules of evidence. (Sowers, 17th Dec. 1858, 2 B. C. 393 and 399.) 2. Consequently even hearsay information would seem admissible within reasonable limits. (Ibid. ) 3. The desposition of a party may of course be used in evidence against him- self. (Belch, 10th June 1806, 2 B. C. 400.) 4. But not against any other (Sau-ers, supra ; 2 B. C. 482), unless in the mean time the party deponing should die (2 B. C. 482). 5. So a deposition by one partner held not evidence against another. (Smith, 2d Oct. 1820, Mur. ; 2 B. C. 399.) 6. Nor the deposition of a principal against a cautioner. (Hunter, 20th Dec. 1822, Mur.) 7. Confidential communications between the bankrupt and his wife are not protected. (Sawers, supra.) 8. Nor between him and his law-agent. (M'Kersy, 1st March 1823 ; Sawers, supra.) 9. The party is not bound to give answers that wiU criminate himself (Sawers, supra; Evidence Act, 16 Vict. c. 20, s. 3 ; 2B. C. 395 and 396), or expose him to any penalty or forfeiture ; but he is bound to do so although they may expose him to a civil suit or tend to establish a debt against him (44 Geo. III. c. 37 ; 2 B. C. 398). 10. A wife held bound to answer questions although her answers might lead ultimately to a criminal proceeding against her husband, and even although a criminal charge had been already made against him anent the very matters upon which she was to be examined (Sawers, supra) , but, of com-se, as above laid down, her deposition could not be used as evidence against him. (Ibid.) Mode of XCII. The examination of the bankrupt, and of such other persons, shall be taken upon oath (a), and shall, except in the cases already specified, wherein a commission is allowed to be granted, take place before the Sheriff, and the bankrupt's exa- mination shall be taken and may be written or dictated by the Sheriff (b), and authenticated in the ordinary way as a regular deposition (c) ; but notes of the. evidence of such other persons shall be written by the Sheriff in the mode prescribed by the Act passed in the 16th and 17th year of the reign of Her present Majesty, chapter 80, with regard to proofs in civil cases in the Sheriff Courts {d), except where it shall appear to him necessary to record and authenticate such evidence, in whole or in part, in the form of a regular deposition, and if the trustee shall make an application to that effect the bankrupt and such other per- sons shall be examined in open court. (a) Vide s. 21, note g, as to making affirmations instead of oaths. (6) The trustee is not bound to put his questions in writing (Mathie, 28th May 1822) ; nor is he bound to prepare interrogatories and commimicate them to the parties beforehand (Robertson's Trustee, 16th June 1827). (c) A deposition on deathbed by the bankmpt before a justice of the peace, held not receivable under 54 Geo. III. i;. 137. (M'Iniosh, 29th Feb. 1828.) (d) The following is that part of the Sheriff Court Act which applies to the mode of writing the evidence : ' ' Where proof shall be allowed, a diet of examina- tion. ACT 1856, WITH NOTES, 285 proof shall be appointed, at which the e™lence shall be led before the Sheriff, who shall, with his owu hand, take a note of the evidence, setting forth the witnesses examined, and the testimony given by each, not by question and answer, but in the form of a narrative, and the documents adduced, and any evidence, whether oral or written, tendered and rejected, with the groimd of such rejection, and a note of any objections taken to the admission of evidence, whether oral or written, allowed to be received ; and the note of the evidence given by each witness shall be read over to him by the Sheriff, and signed by the witness (if he can write) on the last page, in open court, before the witness is dismissed : provided always, that in the event of the Sheriff being unavoidably prevented from taking such notes with his own hand, he shall dictate the same to any competent person he may select." (S. 10.) XCIII. If the bankrupt or any of such other persons shall refuse Penalty on to be sworn (a), or to answer, to the satisfaction of the Sheriff (6), "^f^^"' '° any lawful (c) question put to him by the Sheriflf or trustee, or by any creditor (c?) with the sanction of the Sheriff, or without lawful cause shall refuse to sign his examination, or to produce books, deeds, or other documents in his custody or power re- lating to the estate, the Sheriff may grant warrant to commit him to prison, there to remain nntil he comply with the order, which warrant shall specify the question and answer, book, deed, document, or the refusal to swear or to sign the examin- ation ; and such warrant shall not be subject to the review of the Court of Session (e), hut the bankrupt or person imprisoned may apply by written petition (-without argument) to the Lord Ordinary for a recall of the warrant, and the Lord Ordinary shall order the petition to be served on the trustee or the creditor, and shall thereafter hear parties uiva voce, and pronounce judg- ment (/). (a) As to declarations instead of oaths^ vide s. 21, note g. (6) 1. The Sheriff cannot commit ioT punishment, but only for unsatisfactory answers. {Vide 2 B. C. 398.) 2. A Sheiiff granted warrant of imprisonment against a bankrupt, as he was not satisfied with his oath ; but the Court, on a proof which did not show that the books said to be lost were in his possession, granted liberation. {Nicol 6th Feb. 1851.) 3. The word "Sheriff" includes "Sheriff-Substitute." (S. 4; vide s. 170, note e.) (c) Vide s. 91, note b, as to what are lawful questions. (d) 1. A mandatory held to have the same privilege of putting questions as the creditor. {Smyth, 23d Dec. 1843.) 2. The trustee is not entitled to object to a question by a creditor, upon the ground that the answer will be. injurious to the general body of the credi- tors. (Barstaw, 21st Feb. 1849 ; vide Wright, 7th Feb. 1852 ; 24 ,Tur. 230 ; 1 Stuart, 400.) (e) An appeal under the same section (70) in 2 & 3 Vict. c. 41, was held competent against an order of the Sheriff upon a party to answer a question. {Paul, 21st Feb. 1855.) 286 ACT 1856, "WITH NOTES. (/) It is not necessary that a decision on the merits be forthwith given — the Court may first order a proof. (Nicol, 6th Feb. 1851.) Penalty on latent part- ner of bank rupt com- pany not coming for- ward. Bankrupt may correct his state, and then must take oath insert- ed in this Act. Oath. XCIV. If any latent partner of a company whose estates have been sequestrated shall not, by intimation to the trustee, ac- knowledge that he is a partner, on or before the day appointed for the examination of the known partners, he shall not be en- titled to the benefits or privileges of this Act, unless in an application for the same he shall satisfy the Lord Ordinary or the Sheriff that the omission proceeded from innocent mistake, or ignorance of the proceedings, or reasonable misconception as to his liability as a partner, and unless he shall then follow out all necessary steps for remedying as far as possible the loss and inconvenience thence arising. XCV. The bankrupt, before the close of his examination (a), may make such additions to or alterations upon the state of his affairs as may have occurred to him to be necessary to give a full view of his affairs, which state, with the additions and alterations, shall be subscribed by the Sheriflf and the bankrupt ; and the bankrupt shall then take the following oath (6), which shall be engrossed in the sederunt-book, and subscribed as aforesaid, as relative to such state ; and when the bankrupt is a partner with others, and examined respecting the affairs of the partnership, the words of the oath shall so far be varied as to make it appli- cable to the case : ' I do, in the presence of Almighty God, and as I shall answer to God at the great day of judgment, solemnly swear. That the state of my affairs subscribed by me as relative hereto (c) con- tains a full and true account, to the best of my knowledge and belief, of all the debts, of whatever nature, due to me, and of aU my estate and effects, heritable and moveable, real and persona], wherever situated (the necessary wearing apparel of myself, my wife, and family, only excepted), as weU as of all claims which I am entitled to make against any person or persons whatsoever, and of all estate in expectancy, or means, of what- ever kind, to which I have an eventual right by contract of marriage, trust-deed, settlement, deed of entail, or otherwise ; and that the said state likewise contains a full and true account of aU debts due by me or demands upon me ; and that I have delivered up the whole books, documents, accounts, title- deeds, and papers of every kind belonging to me which in any way relate to my affairs, and which were or are in my posses- sion or under my power ; and that I have made a full disclosure of every particular relating to my affairs : And further, I pro- mise and swear. That I will forthwith reveal all and every other circumstance or particular relative to my affairs which may hereafter come to my knowledge, and which may tend to ACT 1856, WITH NOTES. 287 ' increase or diminish the estate in which my creditors may be ' interested, directly or indirectly.' (a) The bankrupt may be re-examined after taking the above oath. [MatUe, 28th May 1822 ; vide s. 88.) (6) Or aflSrmation. ( Vide s. 21, note g.) (c) By the Act 54 Geo. III. c. 137, s. 25, the state of affairs was ordered to be engrossed in the sederunt-book, while by the oath, s. 33 of that Act, it was stated to be contained thereia, and it is necessary that it stiU be so engrossed (s. 81). Powers of Second and subsequent Meetings of Creditors. XCVI. Prior to the meeting of creditors after the examination Report by of the bankrupt (a), or in the case of a deceased debtor prior to J™^^" }^^ the first meeting after the election of the trustee, the trustee examina- shall prepare a report setting forth the state of the bankrupt's ''™- affairs, and an estimate of what the estate may produce, which report he shall exhibit at the meeting of creditors, and give aU explanations relative thereto ; and the creditors assembled at Powers of such meeting may receive an offer of composition, as herein- creditors OTCr 6St(lt6 after provided (6), and may, either at this or any other meeting (c), give directions for the recovery, management, and disposal of the estate {d) ; and when any part of the estate consists of land or other heritable property, it shall be optional to the credi- tors to determine whether the trustee is to bring such property to judicial sale, or to dispose thereof by voluntary public sale, or by private sale, as herein-after provided (e). (a) Vide s. 87. (h) Vide s. 139. (c) Vide a. 82, note h. (d) The trustee must act with the advice and assistance of the commis- sioners (s. 82, 85) ; by the direction of the creditors (s. 82, 96, 98 ; vide s. 88, note 5) ; under the control and review of the Court (s. 86, 159, 169) ; and always within the limits and according to letter of the Statute. {Dundas, 19th Jan. 1822 ; Aytoun, 28th May 1824 ; Parlane, 28th June 1825 ; Mdben, 3d June 1837.) Vide Duties or Trustee. (e) 1. It is competent to the creditors at this meeting to instruct the trustee to have the first dividend accelerated. (S. 133 and 123.) 2. As to mode of sale, vide s. 82, note 6 ; also s. 114. XCVII. If it shall appear to a majority of the creditors (a) in Proceedings number (S) and value assembled (c) at any meeting after the ex- jo''™^''^^.^ amination of the bankrupt (J), that he has not made a full and afairsur- fair surrender of his estate, or that he has disposed of or con- render, cealed any part of his funds, to the prejudice of his creditors, or that his bankruptcy has been fraudulent, they may authorise the trustee to proceed against him in terms of lavy(e), at the expense of the estate. 288 ACT 1856, WITH NOTES. (a) Qualified creditors. (S. 49, note 6.) (i) As to computing a majority in number, vide s. 101. (c) Whether voting or not. (S. 145, note A.) (cZ) As to calling meetings, vide s. 98 and 99. (c) FJtZe s. 178 and 162. Calling of and Procedure at Meetings. Whenmeet- XCVIII. The trustee, or any commissioner witli notice to the caUed" ^ trustee, may at any time call a meeting of the creditors, and the trustee shall call such meeting, when required by one-fourth (a) in value of the creditors ranked on the estate, or by the account- ant (J). (o) Vide s. 146, note d, as to neutral creditors. (h) Where a statutory meeting, from accidental circumstances, cannot be held at the time advertised, the Co^u^; may appoint a new meeting (Myles, 2d Dec. 1851, 1 Stuart, 99 ; Ross, 27th Feb. 1852) ; but if such should take place in the case of a meeting called by the trustee himself, under the above section, his course is to call another meeting in the usual way. Notice of XCIX. Notice of the day, hour, place, and purpose (a) of all meetings, meetings of creditors under this Act shall be advertised in the Gazette (h) seven days at least (c) before the day of the meeting, and such meeting may be adjourned to the following day. (a) " The time and manner prescribed for advertising meetings of creditors must be very particularly observed, as these precautions enter into the very essence of the proceedings, and will on no account be dispensed with. " (2 B. C. 351.) Vide EBQuisrrES of Meetings. (&) 'Edinburgh Gazette.' (S. 4.) (c) As to computation of time, vide s. 5. No notice to be sent in certain cases. Rules as to computing majorities. C. It shall not in any case be necessary to send- any notifica- tion of the day or place of meetings by post to any creditor whose debt shall be under twenty pounds unless such creditor shall have given directions in writing that such notification shall be sent ; and no notification shall be sent to any creditor who has directed that none shall be sent. CI. All questions at any meeting of creditors shall be deter- mined by the majority (a) in value of those present (6) and en- titled to vote (c), unless in the cases herein otherwise provided ior(d); and when, for the purpose of voting (e), the creditors are required to be counted in number, no creditor whose debt is under twenty pounds shall be reckoned in number, but his debt shall be computed in value. {a) Vide a. 82, note b, as to rights of individual creditors, and as to right of minorities in taking up claims abandoned or being compromised. ACT 185G, WITH NOTES. 289 (i) 1. Vide s. 145, note h. 2. Mandatories may vote. (S. 63. ) (c) Vide s. 49. {dj The Act prescribes no form of procedure at meetings of creditors, except in the case of tlie first meeting (s. 68) for election of trustee, and therefore any questions aa to tlie legality of the meeting, or the probativeaess of the minutes, fall to be solved by principle and usage. 1. A meeting, in order to be legal, must be called in terms of the Statute (see s. 98 and 99). 2. It must be properly constituted — i. e., it must be held at the time and place adver- tised, and there must be no means taken to exclude qualified creditors. If a section of the creditors, whether large or small, choose to secede from the rest and hold a meeting of themselves, it mU plainly be null, just as if they had excluded these others from the meeting. Again, if the creditors should divide simply into two sections, and each hold a meeting, and each meeting pass its own resolutions, then the Court would require to deal with the mat- ter by either cancelling the whole proceedings as irregular, or sustaining the resolutions as those of one meeting, though recorded in two minutes. In Smith, 8th July 1803, 2 B. C. 364, the Court held the proceedings at a sepa- rate meeting from that at which the interim factor attended to be inept, and the votes thrown away. But the report of this case is exceedingly meagre, and does not explain the circumstances under which the two meetings came to be held, nor the groimds of the decision. Besides, by 54 Geo. III. c. 137, s. 23, the presence of the interim factor with the sederunt-book was a statutory requisite, and accordingly that circumstance seemed to determine the legahty of the one meeting and the illegality of the other — an element of decision which does not exist in the matter of ordinary meetings under the present Statute. And in M'Taggart, 1st Feb. 1809, 2 B. C. 366, the Court expressed strong disapprobation of two minates, but it does not appear that the Court cancelled the proceedings. 3. The meeting, when duly called and properly constituted, must furthermore conduct the business with regularity. If the creditors were quite unanimous on aH points, it does not seem incom- petent simply to write out a minute of the procedure, and let all those present subscribe it. But it is usual in all cases, and particularly in cases of differ- ence of opinion among the creditors, that a preses be elected to keep order and sign the minutes, and that a clerk be appointed to write them. The minutes of such meetings are alone probative. (e) Vide s. 4 as to meaning of word "vote." Extent of Trustee's Right. CII. The act and warrant of confirmation in favour of the trus- Vesting of tee shall ipso jure transfer to and vest in him or any succeeding t^stee" trustee, for behoof of the creditors (a), absolutely and irredeem- ably (6), as at the date of the sequestration (c), with all right, title, and interest, the whole property {cC) of the debtor (e), to the effect following (/) : 1st. The moveable {g) estate and effects of the bankrupt, Vesting of wherever situated, so far as attachable for debt, to the "tJtg"^'" same effect as if actual delivery or possession had been obtained, or intimation made at that date (h), subject always T 290 ACT 1856, WITH NOTES. Vesting of heritable estate in Scotland. Vesting of real estates in England, Ireland, and other British do- minions. to such preferable securities (a) as existed at tbe date of tb( sequestration, and are not null or reducible. 2d. The whole heritable estate belonging to the bankrupt ii Scotland, to the same effect as if a decree of adjudication ii implement of sale, as well as a decree of adjudication fo: payment and in security of debt, subject to no legal rever sion, had been pronounced in favour of the trustee, and re corded at the date of the sequestration, and as if a poinding of the ground had then been executed (_;), subject always ti such preferable securities {k) as existed, at the date of tlit sequestration, and are not null and reducible, and the credi tor's right to poind the ground, as herein-after provided (Z) and the right of the trustee shall not be challengeable on the ground of any prior inhibition (saving the effect which such inhibition may be entitled to in the ranking oJ the creditors) (m) : Provided always, that such transfer and vesting of the heritable estate shall have no effect upon the rights of the superior, nor upon any question of succession between the heir and executor of any creditor claiming on the sequestrated estate, nor upon the rights of the creditors of the ancestor (except that the act and warrant of confirma- tion shall operate in their favour as complete diligence) (n) And if any part of the bankrupt's estate be held under an entail or by a title otherwise limited, the right vested in the trustee shall be effectual only to the extent of the interest in the estate which the bankrupt might legally convey, or the creditors attach : 3d. AU real estate situated in England, Ireland, or in any ol Her Majesty's dominions, belonging to the bankrupt, and all interest in or regarding such real estate, which the bankrupt held, or to which he was entitled : Provided always, that as regards all freehold, copyhold, and leasehold estate in Eng- land, Ireland, or any of Her Majesty's dominions (except Scotland), the act and warrant of confirmation shaU be re- gistered in the chief court of bankrupty for the country in which the property is situated, in the like manner as an adjudication of bankruptcy or other similar process ought to be registered according to the law of that country, either in a separate book, or in the general book, as the Court of Bankruptcy shall order, to the intent that all persons con- cerned may have the same means of ascertaining whether any person has been adjudged a bankrupt according to the law of Scotland as they have or shall have of ascertaining whether any person has been adjudged a bankrupt accord- ing to the law for the time being of the country in which the property is situated ; and no purchaser for valuable con- sideration of any freehold, copyhold, or leasehold estate ACT 1856, WITH NOTES. 291 (except in Scotland) shall be affected by any such bank- ruptcy until the act and warrant of confirmation shall have been so registered as aforesaid : Provided also, that where, according to the laws of England, Ireland, or other Her Majesty's doaainions, any deed or conveyance would require registration, enrolment, or recording, the act and warrant of confirmation shall be so registered, enrolled, or recorded according to the laws of England, Ireland, or other Her Majesty's dominions ; and if any purchase is made by any person for valuable consideration, and without notice of the sequestration, prior to the registration, enrolment, or record- ing of the said act and warrant of confirmation, such pur- chase shall not be invalidated by the existence of such act and warrant, or the subsequent registration, enrolment, or recording thereof. (a) Creditors ranked. (S. 121.) (b) The riglit of the creditors is, nevertheless, a mere right in security and for payment of their debts. {Vide s. 29, note^; vide Baotsrupt's Eights, also Teustee's Rights.) (c) The date of the first deliverance is the date of the seq[uestration. (S. 42.) (d) 1. As to interpretation of "property," vide s. 4. 2. No mention is made in these clauses as to heritable property in foreign countries : for of course the Legislature of this country has no power to deal with such property. No doubt the bankrupt is divested of it, as well as of all other property, so far as the Legislature can do so (s. 29), but in order to vest it in the trustee the bankrupt must grant the deeds necessary by the laws of the country where the property is situated (s. 81 and 105) ; or otherwise the creditors must take proceedings in that country to secure such property. (e) Where the bankrupt holds the property gwa executor, held that it does not fall to be distributed under the sequestration, and that a multiplepoinding was competent. (Christie, 27th June 1835. ) {/) To the above clauses, vesting the bankrupt's estate in the trustee, there fall to be added — (1) S. 108, whereby the sequestration operates as an arrestment and decree of forthcoming, and an executed or completed poinding ; (2) S. 48, whereby the registration of the abbreviate of petition for sequestration and deliverance have the effect of an inhibition and citation in an adjudication ; (3) S. 107, whereby the sequestration has the efiect of a decree of adjudication for payment of the bankrupt's debts, principal and interest. ( "ii lodged under the provisions of this Act ; and the trustee shall forthwith transfer the whole dividends not then claimed {a) to such bank, to be there entered in an account to be kept under the title of " Account of Unclaimed Dividends; " and a book or books shall be kept in the office of the accountant, to be entitled " The Eegister of Unclaimed Dividends," containing a list, with the names arranged alphabetically, of all the creditors entitled to such unclaimed dividends, and in what bank deposited, which shall be patent to all persons, and the deposit receipts for such unclaimed dividends shall be transmitted to the accountant ; and after the Claimants discharge of the trustee it shall be competent to any person, ^howmg producing evidence of his right, to apply to the Lord Ordinary piy to Lord for authority to receive such dividends, and on the Lord Ordinary Ordinary being satisfied of the claimant's right, a warrant shall be granted rity to re- by him for payment of such dividend, whereof the accountant <^«i™ J'^'- shall make an entry in the said register, and upon such warrant ^^ *' the bank shall pay the same : Provided that the claimant shall Interest not be entitled to interest on such dividend, but such interest """""P' "[ ipTpi.i 11111 unclaimed shall go into a general fund, oi which an account shall be kept dividends. by such bank, to be called " The Interest Account of Unclaimed Dividends," and which fund shall be applied in such manner as shall be regulated by any Act of Parhament ; and if at the end of twenty-five years from the date of closing any sequestration there shall remain in the bank any unclaimed dividends belong- ing to the estate, the same shall be vested in Government stock, 328 ACT 1856, WITH NOTES. Law ac- counts to be taxed. Surplus to be paid to bankrupt. and the dividends thereon shall be regularly accumulated for the purpose of forming a fund for defraying the expense of proceed- ings in bankruptcy or otherwise, as Parliament shall hereafter direct ; and such bank shall once yearly at least balance the said accounts, and accumulate the interest with the principal sum, so that both shall thereafter bear interest as principal ; and if any- such bank fail to do so, such bank shall be liable to account as if such money had been so accumulated. {a) Wtere a dividend had been arrested, aad, in consequence, the trustee consigned it in bank, thereafter the creditor had the arrestment discharged. Held that this clause under the late Act (2 & 3 Vict. e. 41, s. 135) did not apply, and the creditor entitled to have the dividend, as also the interest. {Parker, 12th June 1841. ) CLIV. All accounts for law business incurred by the trustee shall, before payment thereof by the trustee, be submitted for taxation to the auditor of the Court of Session, or to the auditor of the Sheriff Court of the county in which the sequestration was carried on, as may be directed by a general meeting of the creditors (a). (o) As to calling meetings, vide. s. 98 and 99; and as to voting, vide s. 101. CLV. Any surplus of the bankrupt's estate and effects that may remain after- payment of his debts, with interest, and the charges of recovering and distributing the estate, shall be paid to the bankrupt, or to his successors or assignees (a). (a) Vide s. 29, note^ ; also Eights or Bahkeupt. Accountant in Bankruptcy. Appoint- CLVI. It shall be lawful for Her Majesty, and her heirs and comtantTn successors, to appoint a person versant in law and accounts, to bankruptcy, be called " the Accountant in Bankruptcy," for performing the duties of that office, with such yearly salary, not exceeding eight hundred and fifty pounds per annumn, payable quarterly out of any monies to be voted by Parliament for that purpose, and with such accommodation of office-rooms, or reasonable allowance for the same out of the said fund, as may be fixed by the Commis- sioners of Her Majesty's Treasury, and the accountant shall be allowed three clerks, whom he shall appoint, with a salary not ex- ceeding one hundred andfifty pounds yearly, which salaries shall be paid quarterly out of any monies to be voted by Parliament for that pui-pose ; and the accountant shall hold no other office appointed to by Government, and shall not, directly or indirectly, by him- self or any partner, be engaged in practice before the Supreme or any inferior Court, and he shall not directly or indirectly have any management of or intromission with any money of any ACT 1856, WITH NOTES. 329 bankrupt estate under charge of the Court of Session or of any Sheriff Court, or constituting the fund in any process of seques- tration. CLVII. The accountant shall keep a book, entitled ' The Accountant Eegister of Sequestrations,' in the general form of Schedule (G.) g-s^r^K- hereunto annexed, but with such additional heads as he may find questia- necessary, which book shall be patent to all concerned, and he '"""■ shaU. regularly enter therein the Division of the Court to which any sequestration awarded in the Court of Session is appropriated, or the Sheriff awarding sequestration and the Sheriff to whom the sequestration is remitted, the date of the first deliverance on every petition of sequestration, whether in the Court of Session or Sheriff Court, the name and designation of the debtor, the place and county of his residence, dwelling-hoiise, or place of business, and the name and designation of the petitioning or con- curring creditor, the date of awarding or recalling sequestration, the date of transmission to the Sheriff (if it has not been awarded by him), the time and place appointed for the election of the trustee and commissioners, the name and designation of the trustee and commissioners, and the time for lodging claims in order to obtain payment of the first dividend, the bankrupt's dis- charge on composition or otherwise, and the trustee's discharge, for which purpose the Clerks of the Bill Chamber and the Sheriff Clerk of each county shall transmit forthwith to the accountant ' a certified copy of the first deliverance in sequestrations awarded in the Court of Session and Sheriff Courts respectively, and the Sheriff Clerk of each county shall every six months transmit to the accountant the particulars necessary to enable him to make such entries, and the trustee shall be bound when required to furnish such particulars to the Sheriff Clerk. CLVIII. Each trustee shall, within fourteen days (a) after the Trustee to thirty -first day of October in each year, or on the first lawful day ™*'^® *° after expiry of the said fourteen days, deliver, free of expense, to turn to the Sheriff Clerk of the county, a return in the form of the Sche- ^^^^ , . . . Clerk and dule (H.) hereunto annexed, of every sequestration in which he is the Sheriff trustee ; and the Sheriff Clerk shall, within fourteen days there- Clerk to the after, transmit, in the form of the said Schedule, to the accountant, a return of all the sequestrations depending in the sheriffdom ' whereof he is clerk ; and the accountant shall cause the returns so made to be regularly bound up and preserved, according to the alphabetical order of counties, in a volume to be kept at all times in his oflSce, with an index thereto, framed by him, and which volume shall be patent to all concerned ; and any trustee who shall fail to make such return shall be removable from his office at the instance of any one creditor (J), or of the accountant, or subject to such censure as the Lord Ordinary may think suitable, and be found liable in expenses. and com missioner^ 330 ACT 1856, WITH NOTES. (a) As to computation of time, vide a. 5. (b) 1. This means a qualified creditor. {Vide s. 49, note 6.) 2. If creditor -withdraw, any other creditor may be sisted. {Richmond, 11th Feb. 1854.) Accountant CLIX. The accountant shall take cognisance of the conduct of ru ?c™to ^^^ trustees and commissioners in sequestrations awarded after the take cog- passing of this Act, or in which any proceedings shall have been S'^™ondifct ^^^ within five years thereof ; and in the event of their not faith- of trastees fully performing their duties, and duly observing aU rules and regulations imposed on them by Statute (a), Act of Sederunt, or otherwise relative to the performance of those duties, or in the event of any complaint being made to him by any creditor (b) in regard thereto, he shall inquire into the same, and if not satisfied with the explanation given he shall report thereon to the Lord Ordinary in time of vacation, or during time of session to either Division of the Court of Session, who, after hearing such trustees or commissioners thereon, and investigating the whole matter, shall decide, and shall have power to censure such trustees or commissioners, or remove them from their ofiice, or otherwise to deal with them as the justice of the case may require. (a) A trustee found liable in expenses who failed to perform certain statu- tory requisites — as to transmitting to the accountant copies of inventory and valuation of estate — and laid down by the Court that the smallness of the estate is no sniEcieut reason for neglect of duty by a, trustee. {Accountant in BanJcruptcy, 8th June 1859.) (5) Of course a qualified creditor. ( Vide s. 49, note h. ) To superin- CLX. The accountant shall superintend the annual returns re- returns'-'"'' quired by this Act from trustees, and frame an annual report to the Court of Session showing the state of each depending seques- tration returned to him, which report may be published in the Gazette (a) or otherwise as the Court shall direct; and the ac- countant shall have power, on the application of one or more of the creditors, or of his own accord, to require exhibition of the sederunt-book in any sequestration, and of any vouchers or docu- ments which he may think necessary, and to direct that a meet- ing of the creditors shall be called to take any measures under consideration which he may judge requisite for the preservation or due management of the estate or more speedy realising and division of the funds or winding up of the estate. {a) The 'Edinburgh Gazette.' (S. 4.) To report CLXI. The accountant shall at all times, when requisite, re- disobedi- -p^j^ ^q the Lord Ordinary or either Division of the Court any dis- ' obedience by the trustee or commissioners of any requisition or order by him, and generally any matter which he may deem it necessary for the due discharge of his office to bring before the ACT 1856, WITH NOTES. 33] Lord Ordinary or the Court, and it shall be competent for the Lord Ordinary or the Court to deal summarily with the matter reported, as accords of law. CLXII. If the accountant shall possess information that shall To give in- lead him, on reasonable erounds, to suspect fraudulent conduct formation ■■I,, I ° . . '^ , ..i*" Lord by tne bankrupt, or malversation or misconduct on the part of the Advocate, trustee or commissioners, such as may infer punishment, he shall be entitled to give information to Her Majesty's Advocate, who shall direct such inquiry and take such proceedings therein as he shall think proper (a). (a) Vide s. 97, which, allows trustee to proceed against bankrupt if the cre- ditors authorise him. CLXIII. In case of the illness or temporary absence of the ac- In case of countant, the Lord President of the Court of Session may autho- '1''"'^^' ^'^■' rise any one of the accountant's clerks, or other qualified person, ant, Lord to discharge the duties of the office for the time. President to appoint a deputy. Judicial Power for winding up the Estates of Parties deceased. CLXIV. It shall be competent to one or more creditors (a) of Application parties deceased to the amount of one hundred pounds, or to per- I'^Jo^^g^^ sons having an interest in the succession of such parties, in the estates of event of the deceased having left no settlement appointing trus- P^''^'"'^^ tees or other parties having power to manage his estate or part thereof, or in the event of such parties not accepting or acting (6), to apply by summary petition to either Division of the Court for the appointment of a judicial factor, and, after such intimation of the petition to the creditors of the deceased, and other persons interested, as may be considered necessary, and after hearing parties, the Court may appoint such factor, subject to such condi- tions as to caution, and such other conditions as the Court may provide by Act of Sederunt; and such factor shall manage the estate, recover debts due to it, realise the movable effects by public or private sale, as may be most expedient, dispose of the heritable estate by public sale or private bargain, according to such directions as the Court, on report of the accountant, may give (c), and shall apply the free proceeds, after defraying all expenses in payment of the claims of creditors according to their several rights and preferences, conformably to a state of funds and scheme of division to be prepared by him, and considered and approved of by the Court, on a report by the accountant ; and thereafter the factor shall account for the residue, if any, after payment of debts and expenses, to the parties having a right to the deceased's succession (d) : Provided that the accountant shall annually examine and audit tlie proceedings, intromissions, and accounts of such factor, which shall be duly transmitted for that .332 ACT 1856, WITH NOTES. purpose, and report to the Court thereon, from time to time, as he may deem expedient, and shall generally exercise the hke powers and discharge the same duties with regard to him as he is em- powered and required to exercise and discharge with regard to a trustee under a sequestration, but subject always to the control of the Lord Ordinary or the Court. (a) The creditor or creditors must produce evidence of their debts, but oaths do not seem requisite. ( Vide M'Farlane, 6th March 1857.) (6) Question : whether the Statute applies to all intestate estates, even if the heir or executor were willing to make up titles. (Ibid.) (c) An appointment was made on application of parties interested, who were likewise creditors, and order given to the factor to call a meeting of the deceased's creditors to take their instructions as to realising the estate. (Ibid.) (cZ) Where, after paying debts and legacies, there is a residue in the hands of the factor available to heirs or next of kin, the proper procedure is, that he should report to the Accountant in Bankruptcy the amoimt of the residue, and who are the parties claiming the same, and the grounds of their claims, with a view to the accountant reporting to the Lord Ordinary, and to the Lord Ordinary directing the disposal of it before proceeding to the recall of the factory, and the discharge of the factor. (A lexander, 15th July 1862. ) CLXV. The Court shall have full power to regulate by Act of Sederunt (a) the caution to be found by such factor, the mode in which he shall proceed in realising and dividing the funds, and otherwise in the discharge of his duties, and any other matter which they may deem necessary. {a) Vide Act of Sedenmt, 25th Nov. 1857. Appliciition CLXVI. If a party deceased has left a settlement, appointing on'estatrot trustees or other parties having power to manage his estate as deceased aforesaid, it shall nevertheless be competent for the trustees parties for ^Q^gj. f\^Q settlement, with or without concurrence of the creditors of the deceased and of the persons interested in his succession, to apply in like manner to the Court, and obtain from them an order on the accountant to superintend the administration of the estate, in which case he shall exercise the like powers and discharge the like duties, tinder the control of the Lord Ordinary or the Court, which have been provided for in the preceding sections (a). {a) Questioned whether the acoovuitant's function is extended beyond the mere auditing of the trustee's accounts. (Tweedie, 22d Jan. 1858.) Process of Cessio Bonorum. CLXVII. Any trustee or trustees to whom the pursuer of a cessio shall grant a conveyance of his estate and effects for behoof of his creditors shall act under the supervision and control of the accountant in like manner as tho trustee tinder a sequestration, Judicial factor's du- ties to be regulated by Act of Sederunt. supervision of accoimt- Cessio bonorum. ACT 1856, WITH NOTES. 333 and the accountant shall exercise the like powers and perform the like duties as in that case, but always under the directions of the Court, for which purpose it shall be the duty of every such trus- tee, or, failing him, of the clerk to any such process in the Court of Session, or of the clerk of the Sheriff Court in which the cessio has been granted, to transmit a note of the same, and residence of such trustee, to the accountant, and the accountant shall pre- pare a list of such processes, and shall require from such trustees, at the end of each year, accounts of their intromissions, and re- port on the same annually to either Division of the Court, and he shall also bring before the Court any instance of malversation or irregularity in such trustees, whereupon the Court shall be entitled to inflict on them such censure or punishment as it may deem just (a). (a) The process of cessio is regulated by the Act 6 & 7 Will. IV. u. 56, and Act of Sederunt, antea. CLXVIII. It shall be competent for a majority in number (a) When cre- and value of the creditors (6) at any meeting called for the pur- rgj^Jy^h^t pose (c) after the election of the trustee, if it shall appear to them bankrupt that the estate is not likely to yield free funds for division among IvJ"^'^ ™" the ordinary creditors, after payment of preferable debts and ex- decree of penses, beyond one hundred pounds, to resolve that the bankrupt "^i^**'"- shall only be entitled to apply for and obtain a decree of cessio, and shall have no right to a discharge in the sequestration ; and, on such resolution being passed, it shall be the duty of the trus- tee, after giving eight days' previous notice to the bankrupt, to report such resolution to the Lord Ordinary or the Sheriff («?), who shall hear parties, if required, and decide with reference to the whole circumstances of the case, with or without a report from the accountant whether such resolution shall be confirmed or recalled ; and if such resolution shall be confirmed, the bankrupt shall have no right to a discharge in the sequestration, but shall be entitled to apply for a decree of cessio, and the Court shall have power to grant such decree in the sequestration, without requiring the bankrupt to bring a separate process, and in all other respects the sequestration shall be proceeded with in com- mon form. (a) As to creditors under £20, vide s. 101. (6) Qualified creditors. ( Vide s. 49, note h. ) (c) As to calling meetings, mde s. 98 and 99. (d) The word "Sheriff" includes "Sheriff-Substitute." (S. 4; vide s. 170, note e. ) Judicial Proceedings. CLXIX. It shall be competent to appeal (a) against the reso- Appeals, lutions (6) of the creditors at meetings either to the Lord Ordi- ^<=' against 334 ACT 1856, WITH NOTES. resolutions of creditors and deliver- aijces of trustee to the Lord Ordinary or Sheriif. nary or the Sheriff, provided a note of appeal (c) shall be lodged with and marked by one of the clerks of the Bill Chamber within fourteen days (d) after the date of the meeting at which the resolution objected to has been passed, or (as the case may be) in the hands of and marked by the Sheriff-Clerk within the like period ; and it shall in like manner be competent to appeal against any deliverance (e) of the trustee or commissioners to the Lord Ordinary or the Sheriff, provided the note of appeal shall be lodged and marked as aforesaid within fourteen days from the date of the deliverance (/) ; and where any such ap- peal is made, or where any petition or complaint is presented against the trustee {g) or commissioners, or against any of the creditors, the Lord Ordinary or the Sheriff (as the case may be) shall appoint a copy thereof, and of his deliverance thereon, to be served on the respondent (A), or his mandatory (z), or known agent, and ajjpoint the respondent to appear at a specified diet within such period as may be reasonable (J) ; and the Lord Ordinary or the Sheriff (as the case may be) shall at such diet hear parties viva voce (k), and the Lord Ordinary shall proceed to dispose of the case, with or without a record, as he shall con- sider best ; and the Sheriff, without a record, may decide, pro- vided he shall specify the facts, and assign the grounds of his judgment ; but if he shall see cause he may order minutes (I) to be lodged by the parties, containing their averments in fact and pleas in law, without argument, and may hold the same as a closed record, and proceed in a summary way, and in pronounc- ing his judgment he shall assign his reasons ; and it shall be competent to the Lord Ordinary or the Sheriff, if they shall think fit, where any resolution of a meeting of the creditors is appealed against, to order a new meeting to be held, in order to reconsider the resolution (m). N.B. — The ahove section is almost entirely the same as s. 127 o/2 <£; 3 Vict. c. 41, so as to make the undernoted cases, so far as decided under tlie old Statute, quite applicable to ihe new one. (a) 1. The right of appeal may he waived, as hy attending a proof under the interlocutor appealed against. {Kerr, 22d Peh. 1849.) 2. Where the resolution is not appealed, it seems quite competent to re- duce it on the ground of fraud, deception, or defect of due notice. ( Walker, 3d Dec. 1835.) (6) 1. Where the creditors at a meeting resolved that one of the claims should not be received, and instructed the trustee to keep it out of his states, the Coiu-t at once recalled the resolution. (Henry, 24th Jan. 1832.) 2. An appeal by the bankrupt against the right of a creditor to vote at a meeting, held not competent, as it was not a resolution. [Robertson, 13th Dec. 1842.) (c) 1. There is no form for the appeal, so a note of appeal with a prayer to ACT 185G, WITH NOTES. 385 find the votes invalid, and to recall the resolution, was sustained to entitle the Court to recall it on the merits. {Somerville, infra. ) 2. The term " Sheriff" in the section includes " Sheriff-Suhstitute." (S. 4 ; vide s. 170. note e.) (cQ Aa to computation of time, vide s. 5. (e) Where a creditor sent an oath to the trustee who returned with the following endorsation signed by him, " This affidavit presented to me of this date, the sequestration wound up, and the bankrupt discharged," which was not the case, held not a deliverance requii-ing to be appealed. (Henderson, 19th July 1849.) (/) In two special cases the appeal days run from the date of the ' Gazette ' notice (s. 127 and 130). By these sections the appeal days are fifteen days. {g) Neither this section nor s. 86, authorise any petition or complaint by a creditor for censure or penalty upon the trustee ; such can only proceed under 3. 159, at the instance of the accountant, or perhaps at common law by a cre- ditor, with concurrence of the Lord Advocate. {BeU v. Gow, 29th Nov. 1862.) (A) 1. In appeal against a resolution of creditors, it seems not necessary in the appeal to mention any parties as respondents. (Purdon, 10th Dec. 1853.) 2. And in such an appeal held quite sufficient to serve it on the trustee alone. (SmiA, 10th July 1848.) 3. The practice in Lanartshire is to serve the appeal on all the creditoi-s who voted for the resolution appealed against, and in some cases also on the bankrupt or trustee, where they are interested. (i) Where the service is ordered to be made upon the mandatory, he ought to be designed as such, and in one case the subsequent proceedings were quashed where this was not done. (Ewing, 11th Jan. 1860.) (j) Wbere the service was not made in time to enable the parties to appear at the diet fixed by the Court, held that the appeal was not lost, and new ser- vice ordered. (A herdeen Bank, 3d Dec. 1859. ) (k) Forms of Process. — In sequestrations remitted from the Lord Ordinary, the process remains in the BUI Chamber, and consequently subject to Bill Chamber forms and rules (s. 43, note 6) ; but in sequestrations originating in the Sheriff Court, the forms of process and rules of procedure wiU be the ordi- nary forms and rules of the Court, unless where the Statute has particular provisions on the subject, as in the case of appeals and certaia minutes men- tioned in 3. 169 and 170. In the case of applications the form used in the Sheriff Court as prescribed by the Statute, 16 & 17 Vict. c. 80, must be adopted, as it expressly applies to " all applications before the Sheriff" (s. 7). If) Parties cannot go beyond their minutes, nor plead on grounds inconsistent with them, when the case goes to the Court of Session. (Ord, 3d July 1846.) (m) 1. Jurisdiction in the Appeal. — It does not necessarily follow because an appeal is competent from the decisions of the creditors, or trustee, or commis- sioners, that the Court can review the decision on the merits. On the con- trary, it has been held in an appeal against a resolution of creditors to renew the bankrupt's protection, that the Sheriff could only judge if there was a statutory majority ; and if there was, that it was imperative on him to renew the protection. {Hodge, 4th Dec. 1855.) 2. As a rule, however, the appeal opens up the consideration of the merits. (Vide SommerviUe, 10th Feb. 1859.) 3. But the Court will hardly ever interfere with a resolution of the credi- tors as to management. (2 B. C. 354, 411, 412 ; Ooodwin, 26th Nov. 1803.) 336 ACT 1856, WITH KOTES. Review of Sheriff's judgments. CLXX. It shall be competent (a) to bring under the review (i) of the Inner House of the Court of Session, or before the Lord Ordinary in time of vacation (c), any deliverance (d) of the Sheriff (e), after the sequestration has been awarded (except ■where the same is declared not to be subject to review), provided a note of appeal (/) be lodged with and marked by the Sheriff Clerk, ^vithin eight days (g) from the date of such deliverance Qi), failing which the same shall be final (i) ; and such note, to- gether with the process, shall forthwith be transmitted by the Sheriff Clerk to the Clerk of the Bill Chamber (j) ; and the Lord Ordinary's decision shall, when not expressly made final by this Act, be subject to review of the Inner House (k) ; and it shall be competent to the Inner House or the Lord Ordinary to remit to the Sheriff, with instructions (I). N.B. — This section is substantially the same aa s. 128 qf2 o O « [^ c/; H O H M , it ago |§| ll o -£^-^5i,g> fi°lsf 5S ^ y] M S B ^ 3 s H 5o Q i £ 53 o ■giSg O ,_ Pi C3 O * "5 S.2 ■ +f !-; H '^ ® a ■2 2Sa?^ S .a "g s o » o ^m 3hJ "is ^ ii a?.23gs. o.&flli S ^ 1- - "S a ° tc^ C40 g " P 346 ACT 1856, WITH NOTES. w o a 03 O o -(J o O ^ CO jii ^* , °= I &^ m Id n c « Ca 0) " "S S II a n « cS PS » kJ - £8 13 8 2 8 4 . 15 £16 16 15 £452 8 4 £21 16 Cr. Paid to account of allowance to bankrupt, ... 20 £1 16 Feb. 2. Dr. Received per draft on bank ac- count, . . . 10 10 £442 8 4 £11 16 Cr. Paid burdens and taxes, form- ing charges against house- rent, ... 960 Carry forvrard, £442 8 4 £2 10 NOTES BY ACCOUNTANT IN BANKEUPTCY. 36'9 Dates. State of Banlc „f Trustee's Account. Account. Brought forward, £442 8 4 £2 10 1857, April 1. Dr. Received per draft ou bank ac- count, . . . 30 30 £412 8 4 £32 10 Cr. Paid allowance to bank- rupt, . £13 12 , , Law expenses and mis- cellaneous charges, 16 12 30 4 Balance in bank at 2d April 1857, exclusive of inte- rest from eommencement of account, to be ascer- tained at the end of the year, . £412 8 4 Balance in the trustee's hands at 2d April 1857, . £2 6 Add balance in bank as above, . . . 412 8 4 Total balance of realised funds in favour of the e.state, as at 2d April 1857, . . . £414 14 4 (Signed) E. F., Trustee. 2a 370 NOTES BY ACCOUNTANT IN BANKRUPTCY. NOTES ACCOUNTANT IN BANKEUPTGY IN SCOTLAND, GUIDANCE OP COMMISSIONERS UNDER THE BANKRUPTCY (SCOT- LAND) ACT, 1856 (19 & 20 ViOT, 0. 79), AND THE BANKRUPTCY AND REAL SECURITIES (SCOTLAND) ACT, 1857 (20 h 21 ViOT. o. 19). These notes are intended for the guidance of commissioners elected in sequestrations awarded subsequent to 1st November 1856, the commencement of the Act ; and to point out to them the portions of the Act which regulate their duties, in so far as the accountant is required to take cognisance of the performance of these duties. It is enacted by the 125th section of the Bankruptcy (Scotland) Act 1856, that "immediately on the expiration of four months " from the date of the deliverance actually awarding sequestra- " tion, the trustee shall proceed to make up a state of the whole " estate of the bankrupt, of the funds recovered by him, and of " the property outstanding (specifying the cause why it has not " been recovered), and also an account of his intromissions, and " generally of his management ; and within fourteen days after " the expiration of the said four months, the commissioners shall " meet and examine such state and account, and ascertain whether '' the trustee has lodged the moneys recovered by him in bank " or not ; and if he has failed to do so, they shall debit him " with a sum at the rate of £20 on every £100 not so lodged, " and so, after that rate, on any larger or smaller sum, being " not less than £50 ; and they shall, (1.) Audit his ae- Jv^OTES BY ACCOUNTANT IN BANKRUPTCY. SU "counts; (2.) Settle the amount of his commission ; (3.) Autho- " rise him to take credit for such commission in his accounts " with the estate ; and (4.) They shall certify, by a writing " under their hands, engrossed or copied in the sederunt-book, " the balance due to or by the trustee in his account with the " estate as at the expiration of the said four months ; and they " shall declare whether any and what part of the net produce " of the estate, after making a reasonable deduction for future " contingencies, shall be divided among the creditors." Provision is made in sections 130 and 132 of the same Act for similar procedure at the end of eight months from the date of the deliverance actually awarding sequestration ; and, thereafter, at the end of intervals of three months from the close of the im- mediately preceding account, until the whole funds shall be divided. (See also Bankruptcy and Keal Securities (Scotland) Act 1857 (20 & 21 Vict. c. 19), s. 6.) The commissioners will observe that it is thus the trustee's duty to close his accounts as follows : — First account, on the expiration of four months from the date of the deliverance actually awarding sequestration. Second account, on the expiration of eight months from do. Third account, on the expiration of eleven months from do. Fourth account, on the expiration of fourteen months from do. ; and Each succeeding account thereafter, on the expiration of an interval of three months from the date at which the preceding account was closed. The commissioners will also observe that it is their duty, within fourteen days of the period when each of these accounts is closed, to meet and examine such accounts, &c., and perform the other duties specified in the above-quoted 125th section of the Bankruptcy (Scotland) Act 1856. It is further enacted, in the event of a composition being offered, that before it is approved of, " the commissioners shall " audit the accounts of the trustee, and ascertain the balance due " to or by him, and fix the remuneration for his trouble, subject '• to the review of the Lord Ordinaiy or the Sheriff, if complained " of by the trustee, the bankrupt, or any of the creditors." (Sec- tion 141 of the same Act.) The commissioners are thus constituted the proper auditors of the trustee's accounts, and it is their duty to audit these accounts and to certify the balance. In particular, it is their duty to ascertain that the trustee has lodged the moneys of the estate in bank in terms of the Act. If the trustee fail to exhibit the ac- counts at the stated period required by the Act, the commis- sioners are entitled to call on the trustee to render his accounts ; 372 NOTES BY ACCOUNTANT IN BANKRUPTCY. and, if necessary, they may represent the matter to the account- ant, who will give them the assistance and direction proper in the circumstances. OiTiOE OF Accountant in Bankruptcy, New Eboistek House, Edinbueoh, 186 Gentlemen, — I refer to the prefixed copy of Notes for the Guidance of Commissioners in Sequestrations awarded under the Bankruptcy (Scotland) Act 1856, and the Bankruptcy and Eeal Securities (Scotland) Act 1857, and I beg your attention to these notes. — I am. Gentlemen, your most obedient servant, GEORGE A. ESSON, Accountant in Bankruptcy. To the Commissioners on the Sequestrated Estate of PART III. FOEMS IN INSOLYMGY AND BANKEUPTCY. P A E T III. FORMS IN mSOLYENCT AND BANKEUPTCY. No. I. Summons of Reduction under Act 1621. Sir Archibald Alison, Baronet, advocate. Sheriff of the county of Lanark, to ofiScers of Court jointly and severally : Whereas it is shown to me by A. B., accountant in C, trustee on the sequestrated estates of D. E., merchant in F., conform to act and warrant of confirmation in his favour, dated the day of , produced herewith, and, as such, represent- ing the creditors on the sequestrated estate of the said D. E., and who were true creditors of the said D. E. at and prior to the time of his granting the pretended disposition after-mentioned, and stiU. are creditors of the said D. E., pursuer, against G. H., manufacturer in I., defender, in terms of the conclusions under- written : Therefore the defender ought to be decerned to exhibit and produce before me a pretended disposition, granted by the said D. E., of All and Whole [shortly describe the subjects^ dated the day of , and recorded in the Eegister of Sasines, &c., kept at K., the day of , or whatever other dates, tenor, or contents the same may be, to be seen and considered by me ; and the said pretended disposition, with all that has followed or may follow thereon, ought to be reduced, rescinded, annulled, and decerned to have been from the beginning, to be now and in all time coming, nuU and void, and of no avail, force, or effect in judg- ment, or outwith the same in all time coming, and the pursuer, as trustee foresaid, reponed and restored thereagainst in integrum, in respect the said pretended disposition was granted by the said D. 37C FORMS m INSOLVENCY E. when in insolvent circumstances, to the said G. H., his brother- in-law, who is a conjunct [or confident] person with the said D. E., and that without any true, just, or necessary cause, and without a just price being paid for the same, with a view to defraud his just and lawful prior creditors represented by the pursuer, and in respect of all which the same is null and void in terms of the first clause of the Act of Parliament passed in the year 1621, chapter 18, with expenses : And my will is, &c. Given at- , the day of 18 years. No. II. Summons of Reduction under Act 1696. Sir Archibald Alison, Baronet, advocate. Sheriff of the county of Lanark, to officers of Court jointly and severally : Whereas it is shown to me by A. B., accountant in C, trustee on the seques- trated estates of D. E., wholesale tea-merchant in F., conform to act and warrant of confirmation in his favour, dated the day of , to be produced herewith, and as such represent- ing the creditors on the sequestrated estate of the said D. E., and who were creditors of the said D. E. at and prior to the date of the transference and delivery of the goods after-mentioned and still are creditors of the said D. E., pursuer, against G. H., mer- chant in I., defender, in terms of the conclusions under-written : Therefore the defender ought to be decerned to exhibit and pro- duce before me all pretended invoices, accounts, states, letters, or other writings whereby the said D. E. transferred and delivered to the defender, who was a creditor of the said D. E., 250 chests of tea, on or about the day of , to be seen and considered by me : And it ought to be found and declared by my sentence that on the date last above mentioned, or at least within sixty days thereafter, the said D. E. was a notour bankrupt : And the said writings, with all that has followed or may follow thereon, together with the said transference and delivery of said goods, ought to be reduced, rescinded, annulled, and decerned to have been from the beginning, to be now and in all time coming, null and void, and of no avail, force, or effect in judgment, or outwith the same, and the pursuer as trustee foresaid reponed and restored thereagainst in integrum, in terms of the Act 1696, chapter 5, and the Bankruptcy (Scotland) Act 1856, in respect the foresaid pre- tended writings were granted and the said transference and delivery were made by the said D. E. to the defender of the said 250 chests of tea at or after the said D. E.'s said notour bank- ruptcy, or at least within sixty days before, and that in satisfac- tion or farther security to the defender of a debt due by the said AND BANKRUPTCY. 377 D. E. to him, in preference to the other just and lawful creditors of the said D. E., and to the prejudice of tlie pursuer and the creditors represented by him : And the defender ought to be de- cerned to deliver up to the pursuer as trustee foresaid the said 250 chests of tea, and failing his doing so then the defender ought to be decerned to pay to the pursuer the sum of £ , being the just price and value of the said 250 chests of tea, with interest thereon at the rate of five pounds per centum per annum from the date of citation hereto till payment with expenses : And my will is, &c. Given at Glasgow, the day of years. No. III. Extrajudicial Composition Contract. (List of Creditors.) Glasgow, 186 . I, A. B., merchant in Glasgow, hereby offer to my creditors as per above list a composition of five shillings per poi^nd of their several-debts, payable by two equal instalments at three and six months respectively from this date ; and I, C. D., merchant in Glasgow, hereby become surety for the same. A. B. CD. Glasgow, 186 . We, the subscribing creditors of A. B. above designed, do hereby accept of the above offer, and restrict oar several debts accordingly, but on the condition that all \or nine-tenths in value of] the creditors concur, and that within fourteen days from this date. N.B. — The above is meant to prevent the original debts from reviving, as it is thought that such a result does no good to the creditors inter se ; it does harm to the debtor by injuring his credit with third parties; and it is a species of fraud upon subsequent creditors. No. IV. Trust-Deed. I, A. B., merchant, Glasgow, considering that my affairs have become embarrassed, and that I am owing money to sundry per- 378 POEMS IN INSOLVENCY sons whicli I am at present unable to pay, and with a view to the speedy realisation and distribution of my estates among aU my just and lawful creditors, I have resolved to grant these pre- sents in manner after-written. Therefore I do hereby assign and dispone to and in favour of C. D., accountant in Glasgow, as trustee for the purposes hereinafter mentioned, All and Whole my heritable and moveable and real and personal estates and pro- perty of every description, and without prejudice to the above generality All and Whole [here may he inserted description of any heritage to be conveyed, or, if not, the title may he made up hy nota- rial instrument]. And I bind myself, when required, to grant whatever special or more formal conveyances may be necessary for vesting the estates hereby conveyed in the person of the said trustee. But declaring that these presents are granted by me in trust for behoof of aU who are my just and lawful creditors at the date hereof, and who shall duly lodge their claims to be ranked on the funds of the estate within the period and in the manner hereinafter mentioned ; declaring farther, that in the exe- cution of these presents, the trustee is and shall be invested with the powers and subjected to the duties hereinafter prescribed, viz. : — First, The trustee shall, immediately on delivery hereof, complete his title to the estates hereby conveyed in such manner as is necessary by law to give him a preferable right thereto, and also recover, enter into, and take possession of my said estates, and also uplift and discharge all debts and sums of money due to me ; with all the powers necessary for the recovery of my said estates, and in particular with power to said trustee to compound, transact, and agree, and submit and refer to arbitration aU. doubt- ful claims and questions, and also to sue and defend aU actions necessary or expedient for the recovery or protection of the estate ; declaring that the discharge of the said trustee shall be a sufiScient acquittance to the parties paying money to him belong- ing to me, and that the parties so paying it shall have no concern with the application of the same. Secondly, The trustee, on re- covering and taking possession of said estates, shall manage the same either by himself or by factors or others, and where neces- sary may continue and carry on any business, and also execute and complete any of my existing contracts or works ; and in all oases the trustee shall with every convenient speed sell, realise, and convert my estates into cash, and with power to him to sell said estates by public roup or private bargain, and to grant all necessary deeds for that purpose, but in the case of a sale by private bargain he shall do so only with consent of the committee after named, and he shall regularly lodge the proceeds of the estate in any joint-stock bank of issue in Scotland in his own name as trustee foresaid. Thirdly, The trustee shall, on accept- ance hereof, insert a notice in two newspapers in the county AND "BANKRUPTCY. 79 of , calling on the said creditors to lodge with him theii- respective claims and vouchers of debt within one month from the date of the notice, and shall, if he deem it re- quisite, call upon the creditors, or any of them, to lodge declara- tions of verity to their said debts, with certification that should they fail to do so, or to lodge their claims and vouchers as afore- said, they shall forfeit all right to the first dividend out of the estate ; and in the event of there being funds to pay a second or subsequent dividend, then the trustee shall advertise, in the same maimer and under the like certification, prior to every such divi- dend. Fourthly^ The trustee shall thereupon proceed to examine th.e claims and vouchers of the creditors, and shall admit or reject the same, and give written notice, within seven days thereafter, to each creditor whether he has so admitted or rejected the said creditor's claim ; and the decision of the trustee on the said claims shall be final, so far as the first dividend is concerned, unless any of the creditors or the said A. B. shall, within four- teen days from the date of the said notice, intimate to the trustee in writing, an intention to have the said decision brought under the review of the arbiter hereinafter appointed ; providing, that where there are sufficient funds recovered to enable the trustee to make a second or any subsequent dividend, then the same pro- ceedings shall be gone through with, regard to such dividend as is provided with, regard to the first dividend — it being understood that creditors who are too late for participating in any dividend shall, in claiming with a view to a subsequent dividend, be en- titled to an equalising dividend to the effect of drawing out of the second or any subsequent dividend what they would have drawn if they had been in time to claim a ranking in the first dividend. Fifthly, The trustee shall, every three months from the date of acceptance of this trust, submit an account of his intromissions with the funds of the estate to the said committee, who shaU. audit, and, if found correct, approve of and docquet the same ; and when the estate is realised, the trustee shall forthwith pro- ceed to make up a scheme of division of the proceeds among the creditors according to their several rights and interests, and shall pay to the creditors their dividends accordingly, but without pre- judice to the trustee making one or more dividends if he finds it expedient to do so. Sixthly, The trustee shaU apply the proceeds of the estate, in the first place, in payment of any advances which lie may have made, or expenses he may have incurred, in the management and realisation of the estate, including a reasonable remuneration to himself; in the second place, in payment of claims legally preferable against the estate ; in the third place, in pay- ment rateably of the ordinary debts of the estate ; and should any balance remain after these payments, the trustee and his heirs and executors shall be bound to hold just count and reckoning 380 FORMS IN INSOLVENCY with me therefor, and pay or convey the same to me or my heirs and assignees. And if any of the creditors shall neglect to de- mand, or refuse to take, payment of any of their dividends, then the trustee shall have full power, on the expiration of three months from the date of payment, to lodge the said dividends in bank for behoof of the trust, and to apply the same in payment of the debts due to the other creditors under a subsequent dividend ; and in the event of any of the creditors being unable to receive payment of their share of the estate through legal incapacity or absence from Scotland, then the trustee shall consign their dividends in bank in their own names, and which consigna- tion shall be a sufficient discharge to the trusee therefor. Seventhly, And in order to a more efficient management of the estate, I do hereby appoint G. H., I. J., and K. L., merchants in Glasgow, all creditors of me the said A. B., and the survivors and survivor of them (the major number being a quorum), as a committee of my creditors, to advise with the trustee in the recovery, realisation, and management of the estate, and to audit and settle the trustee's accounts from time to time, and to fix the remuneration of the trustee ; with power to the members of the said committee to resign should they see fit ; and also with power to the remaining members of said committee, from time to time to appoint others of my creditors to act in place of the members who may decline to act, or who may resign or die ; but declaring that the death, resignation, or ceasing to act of all or any of the members of the said committee shall be no bar to the trustee proceeding in the execution of the trust ; also declar- ing, that although the trustee does not consult the said committee, or the committee decline or fail to advise him in any matter con- nected with the trust, it shall be no bar to his acting, and shall not impair his powers under this deed of trust, but shall only affect his personal responsibility in so far as to make him liable, culpa levissima, where he fails or declines to consult the said committee ; and declaring that the committee shall not in any case be required to consent to any step of procedure on the part of the trustee, except to a sale of the estate by private bargain. Eighthly, Further, in order to avoid litigation under this trust, it is hereby provided and declared, that L. M., Dean of the Faculty of Procurators in N., shall be, and is hereby nomi- nated arbiter, with full power to settle and determine all dis- putes between the trustee and creditors, and between the trustee and the committee, and among the creditors themselves, and also between me and the trustee or any of the creditors, whether the same have reference to the management or realisation or distri- bution of the estate, or to the admission or rejection of the claims of creditors, or to the suspension of diligence against me, or to my discharge, or to any other matter under the trust. AND BANKRUPTCY. 381 with all tlie usual powers competent to arbiters in such cases ; and in particular, with power to him to determine all matters of ranking where the decision of the trustee is objected to by any party having interest, and to find that I am entitled to a suspension of diligence at the instance of any of the creditors, and to a discharge of all my debts, and to pronounce an award and decree-arbitral accordingly : And it is declared that all of my creditors who have in writing acceded to this trust, or who shall receive or claim a ranking on the estate, shall be held as consenting to the above clause of arbitration as fully and effec- tually as if they had subscribed these presents ; and I assign the writs, and oblige myseK to deliver up the same whenever required ; and I grant warrandice, and I consent to registration hereof, and of any decree -arbitral to be pronounced by said arbiter tmder the above reference, for preservation and execution, and also to registration in the General or Particular Eegister of Sasines, but in trust always for the uses, ends, and purposes, with the powers and under the provisions and declarations before written. In witness whereof N.B. — There may he inserted in the deeds various other clauses — e. g., nominating a succession of trustees — giving power to the credi- tors to appoint a trustee in succession — making the trust conditional on accession by all the creditors, and that loithin a limited time — making it conditional on acceptance hy the trustee nam^d — or stipu- lating for a supersedere of diligence, and perhaps for an absolute discharge. The accession may be indorsed on the trust-deed thus : " We, the undersigned, named and designed in the testing clause hereof, aU creditors of the within designed A. B., do hereby accede to the within trust-deed in aU its terms. In witness whereof," &c. If letters of horning are wished, then a clause of registration may be inserted. No. V. Summons of Participation in the Proceeds of a Poinding and Sale. {Vide Act 1856, s. 12.) Sir Archibald Alison, Baronet, advocate, SheriflF of the county of Lanark, to oflScers of Court, jointly and severally : Whereas it it is shown to me, by D. E., merchant in Glasgow, pursuer, against G. H., merchant in Glasgow, defender, in terms of the conclusions under- vnitten : Therefore the defender ought to be decerned to hold just count and reckoning with the pursuer for the free pro- ceeds of a sale of certain effects belonging to I. J., merchant in Glasgow, which effects were poinded on or about the day of eighteen hundred and , and the sale 382 FORMS IN INSOLVENCY of whicli was carried through by the defender upon or about the day of eighteen hundred and , or on one or other of the days of the foresaid month of , all by virtue of a warrant at their instance, and for payment of an alleged debt, amounting to £ sterling ; and ought to be decerned to pay to the pursuer the sum of £ ster- ling, being the proportional share of the price or proceeds of the effects so poinded effeiring to a debt due to the pursuer by the said I. J., amounting to £ sterling, contained in a bill drawn by the pursuer upon, and accepted by, the said I. J., dated the day of eighteen hundred and , and payable two months after date, and upon which there followed an extract registered protest and decree irom the Sheriff Court books of the shire of Lanark, dated eighteen hundred and , after deduction of the expenses of poinding — at least, to pay to the pursuer such sum as may be found by my decree to be a proportional share of the price or proceeds of said poinded effects, corresponding to the amount of the pursuer's said debt, deducting expenses as aforesaid : AU in respect that the said T. J. is insolvent, and has been rendered notour bankrupt in terms of the' Statute 1696, c. 5, and the Bankruptcy (Scotland) Act 1856, s. 7, upon the day of eighteen hundred and , at least within sixty days before said poinding at the defender's instance was completed, or at least within four calendar months thereafter, as instructed by the extract registered protest and fiat thereon, and by execution "of search, under the hands of M. N., Sheriff-officer in Glasgow, dated the day of eighteen hundred and years, herewith produced, with expenses : And my will is, that ye summon the defender to compear in my Court House at Glas- gow, upon the sixth day next after the day of your citation, in the hour of cause, with continuation of days, to answer in the premises, with certification, in case of failure, of being held as confessed. Given at Glasgow, the day of 18 years. No. VI. Mandates hy Debtors to apply for Sequestration. \Place and date.\ To S. T., Esq. \Designatioii\. Sir, — I authorise you to apply for sequestration of my estates under the Bankrupt Statutes. — I am, Sir, your obedient servant, A. B. Or, AND BANKRUPTCY. 383 \Place and date.] To S. T. Esq. {Designation]. Sir, — We, the undersigned, as a company, and as partners thereof, and as individuals, authorise yoii to apply for sequestra- tion of our several estates under the Bankrupt Statutes. A. B. & Co. A. B. C. D. No. VTI. Petition hi/ Creditors for Appointment of Judicial Factor, and Deliverance thereon. {Vide Act 1856, s. 16.) Unto the Honourable the Lord Ordinary officiating on the Bills [or the Sheriff of the county of Lanark], the petition of A. B., merchant in Glasgow. The petitioner, A. B., Humbly showeth, — That on the day of the petitioner presented an application to your LordsKip for seques- tration of the estates of D. E., merchant in Glasgow, in terms of the " Bankruptcy (Scotland) Act 1856," and Acts explaining and amending the same, and after the usual citation and the induciee having expired, and no opposition being offered to the petition, your Lordship, by a deliverance of date the day of , awarded sequestration of the estates of the said D. E., and declared the same to belong to his creditors for the purposes of said Statutes, conform to certified copy of the petition and deliver- ance herewith produced [or otherwise, as the case may be]. That the petitioner is a creditor of the said D. E., to the extent of £80 sterling, conform to oath and bill herewith produced. That a portion of the said sequestrated estates consists of [here describe them], and, as the said stock is of a perishable description, the petitioner makes the present application to your Lordship for the appointment of a judicial factor. May it therefore please your Lordship, on considering this petition, to appoint a judicial factor on the said seques- trated estate, with the powers necessary for the preserva- tion of the estate, including the power to recover debts, all in terms of s. 16 of the Statute first above mentioned. According to justice. Deliverance thereon. [Place and date.] — Having considered the foregoing petition, appoints C. D., accountant in Glasgow, as judicial factor on the 384 POEMS IN INSOLVENCY sequestrated estates of A. B., merchant in Glasgow, in terms of the "Bankruptcy (Scotland) Act 1856," s. 16, with the powers necessary for the preservation of the estate, including the power to recover debts ; appoints him to find caution for his intromis- sions, and the proper discharge of his duties, to the extent of £ sterhng, and prohibits the Clerk of Court from issuing a certificate of this appointment until such caution shall be found to his satisfaction. No. VIII. Form of a Bond of Caution for Judicial Factor where Sequestration has been awarded. I, A. B., accountant in Glasgow, having been appointed judicial factor on the sequestrated estate of C. D., merchant in Glasgow, and I, E. F., merchant in Glasgow, as cautioner, surety, and full debtor for and with the said A. B., hereby bind and oblige ourselves, conjunctly and severally, our heirs and execu- tors, that I, the said A. B., shall faithfully discharge all the duties which attach to the said office of judicial factor, and fully account for my whole intromissions with the said estate, and make pay- ment of any balance due by me to the creditors on the said estate, or trustee elected by them to succeed me ; declaring that this bond shall not in any way be affected, nor shall I, the said E. F., be liberated by any omission, negligence, or want of dili- gence on the part of the creditors, or trustee, or commissioners on the said estate ; and declaring, further, that this bond, so far as concerns me, the said E. F., shall not bind me or my foresaids to a greater extent than the sum of sterling, to which my obligation, before written, is hereby limited : And we consent to the registration hereof in the Books of Council and Session, or others competent, therein to remain for preservation ; and that letters of horning on six days' charge, and all other legal execution necessary, may pass hereon in common form as effeirs, and thereto constitute procurators, &c. In witness whereof, this bond (so far as not printed) written and fiUed up by No. IX. Form of Bond where Sequestration has not been awarded. I, A. B., accountant in Glasgow, considering that an applica- tion has been presented to the Sheriff of Lanarkshire, at the instance of C. D., merchant in Glasgow, for sequestration under AND BANKRUPTCY. 385 the Bankruptcy Statutes of the estates of E. F., merchant there, and also that an application has been presented to the said Sheriff, at said instance, for the appointment of a judicial factor on said estates in terms of said Statutes, and seeing that I have been appointed to said ofBce of judicial factor on said estates, until a trustee shall be appointed thereon if the said estates shall be se- questrated, or until the said petition for sequestration shall be dismissed, with all the powers necessary for the interim preser- vation of the said estates, including the power to recover debts. Therefore I, the said A. B., as principal, and I, G. H., merchant, Glasgow, as cautioner, surety, and full debtor for and with the said A. B., hereby bind and oblige ourselves, conjunctly and seve- rally, our heirs and executors, that I, the said A. B., shall faith- fully discharge all the duties which by law, or by my said appointment, attach to the said oflSce of judicial factor, and fully account for my whole intromissions with the said estate, and make payment of any balance due by me to the creditors on the said estate, or trustee elected thereon should the said estates be seques- trated, or otherwise to the party or parties entitled thereto ; de- claring^ that this bond shall not in any way be affected, nor shall I, the said G. H., be liberated by any omission, negligence, or want of diligence on the part of the creditors, trustee, or commis- sioners on the said estates, or on the part of any other party ; and declaring, further, that this bond, so far as concerns me, the said G. H., shall not bind me or my foresaids to a greater extent than the sum of pounds sterling, to which my obligation before written is hereby limited. And we consent to the registration hereof in the Books of Council and Session, or others competent, therein to remain for preservation, and that letters of homing on six days' charge, and all other legal execu- tion necessary may hereon pass in form as effeirs, and thereto constitute procurators, &c. In wit- ness whereof, this bond, written, &c. No. X. Petition hy Creditor for Warrant to lock up Premises, and Deliverance thereon. {Vide Act 1856, s. 17.) Unto the Honourable the Sheriff of the county of Lanark, the petition of A. B., merchant in Glasgow. The petitioner, A. B., Humbly sAowefA,— That on the day of , your Lordship, in terms of the " Bankruptcy (Scotland) Act 1856," and 2b 886 FOEMS IN INSOLVENCY Acts explaining and amending the same, awarded sequestration of the estates of D. E., merchant in Glasgow, and declared the same to belong to his creditors for the purposes of said Statutes, conform to certified copy of the petition and deliverance herewith produced. That the petitioner is a creditor of the said D. E., to the extent of £80 sterling, conform to oath and bill herewith produced. That the said D. E. was refused personal protection by yonr Lordship, and in consequence of certain of the creditors having diligence ready for immediate execution against him, whereby he has been deterred from attending to his business, or remain- ing in the management of his shop and warehouse, the petitioner considers it will be for the interest of his creditors, that steps be taken to have his books and papers put under safe custody, and his premises situated in Street, Glasgow, locked up till the appointment of a trustee on the sequestrated estate. May it therefore please your Lordship, on considering this petition, to grant warrant to the Clerk of Court, or to any other person or persons that your Lordship may name, to proceed to the premises now or lately occupied by D. E., the bankrupt, in Street, Glasgow, and to seal up and put under safe custody the books and papers of the bankrupt, and to lock up his shop, ware- house, or other repositories, and to keep the keys thereof, till a trustee is elected and confirmed on the said seques- trated estate, all in terms of s. 17 of the Statute first above mentioned. According to justice. Deliverance thereon. Glasgow, 1st Nov. 1856.— Having considered the foregoing petition and productions, grants warrant to V. W., assistant to the_ Clerk of Court, to proceed to the premises referred to in the petition, and seal up and put under safe custody the books and papers of the bankrupt, and lock up his shop, warehouse, or other repositories, and keep the keys thereof until a trustee is elected and confirmed, all as craved. No. XL Petition for Sequestration by Debtor with concurrence of a Creditor, and Deliverance thereon, ^c. No™mbe°°' '^'"to tl^e Honourable the Lord Ordinary officiating on the Bills, 1, 185 6. ["'• the Sheriff of the county of Lanark], the petition of A. B., AND BANKRUPTCY. 387 merchant in M., [or A. B. and Company, merchants in M., and A. B. and D. E., the individual partners of that Com- pany], with concun'ence of F. Gr. [or F. G. and Company], merchant in M., a creditor of the said A. B., to the extent required by the Statute, Humbly sJwweth, — That the petitioner [if to the Sheriff", insert, for the year preceding the date of this application, has carried on business at M., in the county of L., and] is subject to the jurisdiction of the Supreme Courts of Scotland. That the petitioner, having become insolvent, is under the necessity of applying for sequestration of his estates, in terms of the " Bankruptcy (Scotland) Act 1856," and Acts explaining and amending the same. That the the said F. G. [or F. G. and Company] is a creditor of the petitioner, to the extent of £80, conform to bill and oath herewith produced, and is thus duly qualified in terms of said Statutes to concur in this petition. [A statement to warrant a prayer for liberation may be inserted. Vide No. XXVIII.] May it therefore please your Lordship to award sequestra- tion of the estates which now belong, or shall hereafter belong, to the petitioner [or the said A. B. and Company, and to the said A. B. and D. E., as partners of that Com- pany, and as individuals], before the date of his discharge, and to declare the said estates to belong to the creditors of the petitioner [in the case of a Company, to their respec- tive creditors] for the purposes of said Statutes, and to appoint a meeting of the said creditors, to be held on the day of at o'clock noon, within the to elect a tmstee [in case of a Company, insert, on the estates of the said Company and individual part- ners or separate trustees], or trustees in succession, upon the said sequestrated estates, and do the other acts pro- vided by the said Statutes [where the Lord Ordinary, insert, also to remit to the Sheriff of the county of L. to proceed in manner mentioned in said Statutes] : and to grant to the petitioner a warrant of protection against arrest or imprisonment for civil debt, until the said meeting of creditors for the election of trustee, and do otherwise. [A prayer for liberation may also be inserted, or No. XXVIII. may be used instead.^ According to justice, &c. Deliverance thereon. [Place and date.] — The Lord Ordinary [or SheriiT- Substitute], having considered the foregoing petition, with the writs produced, 388 FOKMS IN INSOLVENCY sequestrates the estates which now belong, or shall hereafter belong, to the petitioner, A. B., merchant in M. [or if a Company/, A. B. and Company, merchants in M., as a Company, and to A. B. and C. D., the individual partners of that Company, as partners thereof, and as individuals], before, the date of his [or their] dis- charge, and declares the same to belong to his creditors [or to their respective creditors] for the purposes of the " Bankruptcy (Scotland) Act 1856," and Acts explaining and amending the same ; appoints a meeting of the creditors to be held on the day of at o'clock , within to elect a trustee [if a Company, insert, on the estates of the said Company, and individual partners or separate trustees], or trus- tees in succession, on the said estates, and do the other acts pro- vided by the said Statutes [where by the Lord Ordinary, remit to the Sheriff of the county of L. where the said meeting is to be held to proceed in manner mentioned in said Statutes], and grants a warrant of protection to the said A. B. [or A. B. and C. D.] against arrest or imprisonment for civil debt, until the meeting of the creditors for election of trustee. [If liberation is prayed for, add : Farther, appoints a copy of the said petition, and of this deliverance, to be served upon the within designed G. H., the in- carcerating creditor, or his known agent ; and appoints parties, or their procurators, to be heard on the craving for liberation before the Sheriff-Substitute in his Chambers here, on the day of at o'clock, with certification.] Docquet for certified Copy. What is contained upon this and the preceding pages is a true copy of the petition for sequestration of the estates of the before-designed A. B. and Company [or A. B. and C. D], and in- dividual partners, with concurrence therein mentioned, and of the deliverance pronounced thereon by Bill Chamber [or Sheriff Clerk's Office, Glasgow], 1st Nov. 1856. No. XII. Petition for Sequestration by a Creditor without the Debtor's consent, and First Deliverance thereon. {Vide Act 1856, s. 13, 15, and 18.) Division, Unto the Honourable the Lord Ordinary officiating on the Bills [or November Sheriff of the county of L.], the petition of F. G. [or F. G. and Company], merchant in M., a creditor of A. B. [or A. B. AND BANKRUPTCY. 389 and Compauy, merchants in M., and A. B. and D. E., in- dividual partners of that Company], merchant in M., to tlie extent required by the Statute, Humbly showeth, — That the petitioner is a creditor of A. B., above designed, to the extent of £80 sterling, conform to bill and oath herewith produced. That the said A. B. has been rendered notour bankrupt within the last four months, and still remains in a state of notour bank- ruptcy, and has, within a year before the date of the presentation of this petition, resided or had a dwelling-house or place of busi- ness in Scotland, and is subject to the jurisdiction of the Supreme Courts of Scotland. [In the case of a Company, say, that the said A. B. and Company have been rendered notour bankrupt within the last four months, and still remain in a state of notour bank- ruptcy, and have, within a year before the date of the presenta- tion of this petition, carried on business in Scotland ; and A. B., partner of said Company, has resided or had a dwelling-house in Scotland within said period, and said Company and partners are subject to the jurisdiction of the Supreme Courts of Scot- land.] [If to the Sheriff, insert. That the said A. B. [or A. B. and Company], for the year preceding the date of this petition, has resided [or carried on business] in Glasgow, in the county of Lanark.] That, in order to realise the estates of the said A. B. for behoof of his creditors, the petitioner is under the necessity of applying to your Lordship for sequestration of his estates, in terms of the " Bankruptcy (Scotland) Act 1856," and Acts explaining and amending the same. May it therefore please your Lordship, on considering this petition, with the bill and oath produced, to grant warrant for citing the said A. B. [or A. B. and Company, and A. B. and D. E.], to appear before your Lordship on such inducise as your Lordship may direct, to show cause why sequestration of his estates should not be awarded. Also to direct intimation of the said warrant, and of the diet of appearance on such inducise, to be made in the ' Edin- burgh Gazette ; ' and grant diligence to recover evidence of the notour bankruptcy of the said A. B. [or A. B. and Company], or other facts necessary to be established. And on again considering this petition, to award seques- tration, &c. [as inform of petition, No. XI., except prayer for protection.^ First Deliverance thereon. [Place and date.] — The Lord Ordinary [or Sheriff-Substitute] having considered this petition, with the writs produced, grants 390 FORMS IN INSOLVENCY warrant to macers and messengers-at-arms \ifhy Sheriff, to mes- sengers-at-arms and officers of Court] to cite, in terms of the " Bankruptcy (Scotland) Act 1856," the therein designed A. B. [or A. B. and Company, and A. B. and D. E.], to appear in Court on the seventh day next after citation if within Scot- land, and on the twenty -first day next after citation if furthof Scotland, to show cause why sequestration of his [or their] estates should not be awarded; and directs intimation of this warrant and of the diet of appearance to be made in the ' Edin- burgh Gazette,' all in terms of said Statute. Farther, grants diligence against witnesses and havers to recover evidence of the notour bankruptcy of the said A. B., and of the other facts neces- sary to be established for obtaining the sequestration, and com- mission to the Judge Ordinary of the bounds \or any of the De- pute Clerks of Court] to take the depositions of the witnesses and havers, and to be reported quam primum. Noi XIII. Minute for Sequestration after Citation and Advertisement. Minute for E. G. [or E. G. and Company], merchant in L. ; in the petition at his instance for sequestration of the estates of A. B., merchant in L. 1 Nov. 1856. That in terms of your Lordship's warrant, of this date, the said A. B. was duly cited to appear within the period speci- fied in said warrant, to show cause why sequestration should not be awarded conform to execution of citation herewith pro- duced. That, farther, the petitioner, in terms of your Lordship's war- rant, inserted a notice in the ' Edinburgh Gazette,' of date the 2d day of November 1856, intimating the said warrant and the diet of appearance, as shown by copy of the Gazette herewith produced. That, lastly, the petitioner has, in terms of your Lordship's warrant, recovered evidence of the notour bankruptcy of the said A. B., and of the other requisites for the sequestration of his estates, all of which are herewith produced. That no appearance having been made by the said A. B., the petitioner respectfully craves your Lordship to pronounce a deli- verance in terms of the prayer of the original petition. In respect whereof N.B. — A minute is not generally used in the Sheriff Court. AND BANKEUPTCY. 391 No. XIV. Gazette Notice under Application by Creditor for Sequestration without Debtor's consent. (Vide s. 28.) Notice. A petition having been presented to the Lord Ordinary officiat- ing on the Bills [or Sheriff of Lanarkshire] at the instance of A. B., merchant in Glasgow, for sequestration of the estates of 0. D., merchant in Glasgow, his Lordship, of this date, granted warrant for citing the said 0. D. to appear in Court on the seventh day next after citation if within Scotland, and on the twenty-first day next after citation if furth of Scotland, to show cause why sequestration should not be awarded. Of all which intimation is hereby given. M. N., Affent. [Specify place of business. '\ [Place and date.^ No. XV. Second Deliverance thereon. [Place and date.] — The Lord Ordinary [or Sheriff-Substitute] having resumed consideration of the foregoing petition with the writs therewith produced, together with the foregoing execution of citation, and ' Edinburgh Gazette ' now produced containing the intimation ordered by the previous interlocutor, and having seen the petitioner's reported proof and productions therewith made, instructing the notour bankruptcy of A. B. [or A. B. and Company] above designed, and the other facts necessary to be established for obtaining the sequestration, all as averred in said petition, and no appearance having been made to oppose the prayer of the petition, sequestrates [as in No. XL, except warrant of protection]. No. XVI. Petition for Sequestration of a deceased Debtor's Estates, at the instance of a Mandatory. Unto the Honourable the Lord Ordinary officiating on the Bills ^ D'vision, [or Sheriff of the county of L.], the petition of A. B., mer- i, i862. 392 FORMS IN INSOLVENCY chant in Glasgow, mandatory of the deceased 0. D., mer- chant in Glasgow, conform to mandate produced, Humbly showeth, — That the said C. D., now deceased, was, at the time of his death, which happened on the day of last, subject to the jurisdiction of the Supreme Courts of Scotland. [If to the Sheriff, insert, That the said C. D. for the year preceding his death resided \or carried on business] at' Glasgow, in the county of Lanark.] That, in order to wind up his affairs, the said 0. D. granted a mandate to the petitioner to apply for sequestration of his estates, in terms of the "Bankruptcy (Scotland) Act 1856," and Acts explaining and amending the same, which mandate is herewith produced and founded on. That, in conformity with said mandate, the petitioner makes this application to your Lordship for sequestration under the said Statutes. May it therefore please your Lordship, on considering this petition, with the mandate produced, to award sequestra- tion of the estates of the said deceased A. B., belonging to him at the time of his death, and to declare the same to belong to his creditors, for the purposes of said Statutes, and to appoint a meeting of the said creditors, to be held on the day of at o'clock noon, within the to elect a trustee, or trustees in suc- cession, upon the said C. D.'s sequestrated estates, and do the other acts provided by the said Statutes [where to the Lord Ordinary, add. Farther, to remit the process of sequestration to the Sheriff of the county of Lanark, to proceed therein, all in terms of said Statutes] ; and do otherwise. According to justice. Deliverance thereon. (Same as No. XL, except warrant of protection.) No. XVII. Petition for Sequestration of a deceased Debtors Estates, at the instance of a Creditor, and Deliverance thereon. Divisiou, Unto the Honourable the Lord Ordinary officiating on the Bills Nov.1,1856. [-y^ sjjgj^Q- Qf ^jjg county of L.], the petition of F. G. [or F. G. and Company], merchant in Glasgow, a creditor of the deceased A. B., merchant in Glasgow, to the extent required by the Statute, AND BANKRUPTCY. 393 Humbly showeih, — That A. B., above designed, was, at tlie time of his death, ■which happened on the day of last, subject to the jurisdiction of the Supreme Courts of Scotland. \If to the Sheriff, insert, That the said A. B., for the year preced- ing his death, resided [or carried on business] at Glasgow, in the county of Lanark.] That the petitioner was a creditor of the said A. B. at the time of his death to the extent of £80 sterling, and the said debt is stni resting owing to the petitioner, conform to bill and oath herewith produced. That M. N., merchant in Glasgow, is the only child and suc- cessor of the said A. B. [If sequestration is to be forthwith awarded, add as follows : — That the said A. B. was, at the time of his death, notour bank- rupt ; or, That M. N., merchant in Glasgow, only child and suc- cessor of the said A. B., concurs in this petition ; or, That M. N., merchant in Glasgow, only child and successor of the said A. B., renounces the succession of the said A. B.] That, at the time of his death, the said A. B. resided \_or had a dwelling-house, or carried on business] in Glasgow, and was then owner of estates in Scotland, all as deponed to in the oath accompanying this petition. That, in order to realise the estates of the said A. B. for behoof of his creditors, the petitioner is luider the necessity of applying to your Lordship for sequestration of his estates, in terms of the " Bankruptcy (Scotland) Act 1856," and Acts explaining and amending the same. May it therefore please your Lordship, on considering this petition, with the bill and oath produced, to grant war- rant for citing the said M. N. to appear before your Lordship, on such inducise as your Lordship may direct, to show cause why sequestration of the estates of the said A. B., now deceased, should not be awarded ; also to direct intimation of the said warrant, and of the diet of appearance to be fixed by your Lordship, to be made in the 'Edinburgh Gazette.' [Where the successor con- curs or renounces, the above is unnecessary ; and in place of citation, ^c, say, and in respect of the concurrence of the said M. N., to award sequestration, &c. Where notour bank- ruptcy, however, is averred, insert, and to grant diligence to recover evidence of the notour bankruptcy of the said A. •B., or other facts necessary to be established.] And on again considering this petition, to award sequestration, &c. [as inform of petition No. XI., except warrant of pro- tection, and with this addition : Farther, to oidain the said M. N., or any successor who has made up a title to, or is 394; FORMS IN INSOLVENCY in possession of, the said deceased's property, to convey the same, so far as liable for the debts of the said deceased, to the trustee to be appointed under the said sequestra- tion.] Deliverance thereon. [Place and date.] — The Lord Ordinary [or Sheriff-Substitute] having considered this petition, with writs produced, grants warrant to macers and messengers-at-arms [if hy Sheriffs to messengers-at-arms and oflScers of Court] to cite, in terms of the "Bankruptcy (Scotland) Act 1856," M. N. above designed to appear in Court on the seventh day next after citation if within Scot- land, and on the twenty-first day next after citation if furth of Scotland, to show cause why sequestration of the estates of the deceased A. B. should not be awarded : Farther, directs intima- tion of this warrant and of the diet of appearance to be made in the ' Edinburgh Gazette,' all in terms of the Statutes. [If a dili- gence to be granted, vide No. XII.] No. XVIII. Gazette Notice and Minute for Sequestration after Citation and Advertisement. (Same as Nos. XIII. and XIV.) Deliverance thereon. [Place and date.] — The Lord Ordinary [or Sheriff-Substitute] having resumed consideration of this petition, with the writs pro- duced, together with a minute now given in for the petitioner, ex- ecutions of service, ' Edinburgh Gazette,' and other productions made therewith, and no appearance having been made for the successors of the deceased A. B., after designed, or for any other party, sequestrates the estates of A. B., merchant in Glasgow, now deceased, in terms of the " Bankruptcy (Scotland) Act 1856," and Acts explaining and amending the same, and declares the said estates to belong to his creditors, for the purposes of the said Statutes ; ordains the within designed [the successors named in the applicationl, or any successor who has made up a title to, or is in possession of, any part of the said deceased's property, to convey the same, so far as liable for the debts of the said deceased, to the trustee to be appointed under this sequestration ; and appoints the creditors to hold a meeting on the day of at o'clock, within the , to elect a trustee or trustees in succession, on the estates of the said deceased A. B. and do the other acts provided by said Statutes. [If hy Lord AND BANKRUPTCY. 395 Ordinary, add, remits to the Sheriff of the County of L., where the said meeting is to be held, to proceed in manner mentioned in said Statutes.] No. XIX. Oath hy Petitioning or Concurring Creditor. At A., the day of eighteen hundred and years, in presence of B. C, Esq., Judge Ordinary or Magistrate of Glasgow \or one of Her Majesty's Justices of the Peace for the county of Lanark] : Compeared E. F., merchant in Glasgow, who, being solemnly sworn and examined, depones, that H. I., manu- facturer in K., is \if a Company, say, H. I. and Company, manu- facturers in K., and H. I. and V. W., the individual partners of that Company ; if debtor dead, say, was at the time of his death] truly indebted and owing to the said E. F., the sum of one hundred pounds sterling, for goods, per account produced \or, being the contents of a bill drawn by the said E. F. upon, and accepted by, the said H. I., of date the day of , and payable three months after date, herewith produced] : De- pones, that no part of said sum has been paid or compensated, and that the said E. F. holds no other person than the said H. I. \or, H. I. and Company, and individual partners] bound for the debt, and no security for the same. \If there he co-obligants or securities held for the debt, then instead of the lines following the word " compensated," say. Depones, that E. F., besides the said H. I., holds M. N. liable for said debt, as also the security of a right of pledge for said debt over a quantity of goods placed in the deponent's custody, by the said H. I., on the 20th of May last : But depones, that the said E. F. holds no other obligants or securities for said debt than those now specified. Where the petition is presented during the life of the debtor, but without Ms con- sent, and the petitioning creditor shall found upon his debtor's bank- ruptcy in respect of his retiring within the Sanctuary, then the follow- ing deposition shall be made either in the above oath or in a separate oath: Depones, that the said E. F. believes the said H. I. to have retreated to the Sanctuary, or, as the case may be. Depones, that the said E. P. believes the said H. I. to have retired to the Sanc- tuary for twenty-four hours. Where the debtor is dead, the petition- ing creditor shall, in the above oath, or in a separate oath, make the following deposition : Depones, that the said H. I., at the time of his death, resided in , or had a dwelHng-house in , or carried on business in , and was then the owner of estates in Scotland.] All which is truth, as the deponent shall answer to God. B. C, J. P. E. F. 396 * FORMS IN INSOLVENCY No. XX. Oath for Voting. At A., tlie day of eighteen hundred and years, in presence of B. C, Esquire, Judge Ordinary or Magis- trate of Glasgow \or one of Her Majesty's Justices of the Peace for the county of Lanark] : Compeared E. E., merchant in Glas- gow, who, being solemnly sworn and examined, depones, that H. I., manufacturer in K., was \ifa company^ say, H. I. and Com- pany, manufacturers in Glasgow, and H. I. and V. W., the indi- vidual partners of that company ; if debtor dead, say, was at the time of his death] at the date of the sequestration of his estates, and still is, truly indebted and owing to the said E. F. the sum of one hundred pounds sterling, for goods, per account produced [or, being the contents of a bill drawn by the said E. F. upon and accepted by, the said H. I., of date the day of , and payable three months after date, herewith produced] : De- pones, that no part of said sum has been paid or compensated, and that the said E. F. holds no other person than the said H. I. [or H. I. and Company, and individual partners] bound for the debt, and no security for the same. [If the creditor hold a security over any part of the bankrupt's estate, then instead of the lines following the word " compensated," say. Depones, that the said E. F. holds the security of a right of pledge for said debt over a quantity of goods placed in the said E. F.'s custody, by the said H. I., on the 20th of May last, which security the said E. F. values at the sum of twenty pounds, and which value being deducted from the amount of the debt, leaves a balance of eighty pounds sterling due to the said E. F. by the said H. I. If the creditor hold any co-obligants liable in relief to the bankrupt he may depone as follows : Depones, that the said E. F., besides the said H. I., holds M. N. liable for said debt, and in respect the said M. N. is liable in relief to the said H. T., the said E. F. hereby values the obligation of the said M. N. at the sum of twenty pounds sterling, and which value being deducted from the amount of the debt, leaves a balance of eighty pounds sterling due to the said E. F. by the said H. I. In the same way, the creditor must value and deduct any security he holds from an obligant liable in relief to the bankrupt, or any security from which the bankrupt has a right of relief. If the creditor means to vote on the estate of a partner, he may depone as follows : Farther, the said E. F. values his claim against the estate of the said H. I. and Company at the sum of twenty pounds sterling, and in respect the said V. W. is bound to relieve his co-partner, H. I., to the extent of one-half of the company debts, the said E. P. hereby values his claim against the said V. W. at the sum of ten pounds AND BANKRUPTCY. 397 sterling, which two sums of twenty pounds and ten pounds being deducted from said debt, leaves a balance of seventy pounds sterhng, for which the said E. F. claims to vote upon the estate of the said H. I. Where it is a contingent debt, or an annuity, the creditor, ajter the words " solemnly sworn and examined," may depone as follows : Depones, that by bond of annuity, of date the day of , H. I., merchant in Glasgow, for the causes and considerations therein set forth, bound and obliged himself, his heirs and successors whomsoever, to pay to the said E. F. during all the days of his life, a free liferent annuity of thirty pounds sterling yoEtrly, at two terms in the year, Whitsunday and Martinmas, by equal portions, beginning the first payment thereof as at the term of Whitsunday 1856 for the half-year fol- lowing, and so forth, yearly, termly, and proportionally thereafter in advance, during the life of the said E. F., with a fifth part more of liquidate penalty in case of failure in punctual payment, and the legal interest of the said annuity from and after the re- spective terms at which the same should fall due, and in time coming during the not payment thereof, all conform to said bond of annuity, itself herewith produced : Depones, that no part of said annuity has been paid or compensated since the payment of the half-year's annuity which fell due at Whitsunday last, and that the said annuity is truly due and owing to the said E. F. by the said H. I., from the said term of Whitsunday last, so long as the said annuity has yet to run : Depones, that the said E. F. holds no other person than the said H. I. bound for the debt, and no security for the same. That the estates of the said H. I. having been sequestrated under the " Bankniptcy (Scotland) Act 1856," upon the day of , the said E. F. claims to vote and to be ranked for a dividend on the said estate in virtue of his said debt above specified. And in respect that, by s. 54 of said Statute, the said E. F. is not entitled so to vote and to be ranked on said estate until said annuity has been valued, the said E. F. hereby requires M. M., merchant in Glasgow, the trustee on said sequestrated estate, to put a value on the above specified annuity, in terms of the said Statute, to the effect that the said E. F. may vote and draw dividends as a creditor on the said H. I.'s sequestrated estate.] All which is truth, as the de- ponent shall answer to God. B. C, J. P. E. F. Mandate for Voting. Glasgow, Nov. 1, 1856. To S. T., Esq., accountant, Glasgow. SiE, — I authorise you to act and vote as my mandatory in the sequestration of A. B., merchant in Glasgow. — I am. Sir, your obedient servant, D. E. 398 FORMS IN INSOLVENCY No. XXI. Oath for Ranking. At A., the day of eighteen hundred and years, in presence of B. C, Esquire, Judge Ordinary or Magis- trate of Glasgow [_or one of Her Majesty's Justices of the Peace for the county of Lanark] : Compeared E. F., inerohant in Glas- gow, who, being solemnly sworn and examined, depones, that H. I., manufacturer in Glasgow, was [if a company, say, H. I. and Company, manufacturers in Glasgow, and H. I. and Y. W., the individual partners of that company ; if debtor dead, say, was, at the time of his death, indebted, &c.] at the date of the sequestra- tion of his estates, and still is, truly indebted and owing to the said E. F. the sum of one hundred pounds sterling, for goods, per account produced \or, being the contents of a bill drawn by the said E. F. upon, and accepted by, the said H. I., of date the day of and payable three months after date, here- with produced] : Depones, that no part of said sxim has been paid or compensated, and that the said E. F. holds no other person than the said H. I. \or H. I. and Company, and individual partners] bound for the debt, and no security for the same. \If the creditor holds a security over any part of the hankrupt's estate, then instead of the lines following the word "compensated," say, Depones, that the said E. F. holds the security of a right of pledge for said debt over a quantity of goods placed in the said E. F.'s custody, by the said H. I., on the 20th of May last, which security the said E. F. values at the sum of twenty pounds, and which value being deducted from the amount of the debt, leaves a balance of eighty pounds sterling due to the said E. F. by the said H. I. If the creditor means to vote on the estate of a partner, lie may depone as follows: Farther, the said E. F. values his claim against the estate of the said H. I. and Company, at the sum of twenty pounds sterling, which, being deducted from said debt, leaves a balance of eighty pounds sterling, for which the said E. F. claims to rank upoii the estate of the said H. I. If the creditor means to claim a preference over any particular fund, he may, after the words " and no security for the same," make the following deposition: except as after-mentioned : Depones, that on the 20th day of May last, the deponent raised diligence upon his said bill, and on said date executed an arrestment against the said H. I., in the hands of the Union Bank of Scotland, whereby the sum of one hundred pounds of money due and owing to the bankrupt was legally attached in security and for payment of the contents of said bill. And in respect that the said fund so ar- AND BAKKRUPTCY. 399 rested has been uplifted by the trustee in said sequestration, in terms of tho Statute, the said E. F., in virtue of his said arrest- ment, hereby claims to be preferred prima loco to the said fund, and that to the eflfect of receiving full payment therefrom of the debt above deponed to. Jf the creditor has omitted to lodge Ms claim in time to share in the first dividend, he, in order to claim an equalising dividend, may make the following deposition : Depones, that the said E. F., having failed to produce his oath and grounds of debt timeously, did not receive payment of the first dividend declared in this estate ; but, in terms of the Statute, he now claims out of the first funds of the estate an equalising dividend corresponding to the dividend he would have drawn if he had claimed in time for the first dividend. If the creditor is not in possession of the necessary documents to prove his debt, he may depone as follows : Depones, that the cause of the said bill and extract registered protest not being herewith produced, is, that the same are at present lodged in a process of suspension before the Court of Session, at the instance of 0. P., the drawer and in- dorser of the said biU, against the said E. F., and accordingly the said E. F. claims to have a dividend set apart till a reasonable time be afforded for production of said documents, or for other- wise establishing his debt according to law. Where it is a con- tingent debt or an annuity, vide Form for Voting, supra.] All which is truth, as the deponent shall answer to God. B. C, J. P. E. F. No. XXII. General Variations in the Form of Oaths, whether for Petitioning, Voting, or Ranking. 1. If the oath is taken out of the kingdom of Great Britain and Ireland, there must be a certificate by a British Minister, or a British Consul, or a Notary Public, to the following effect : New York, 20th May 1856. This is to certify that B. C, who adhibits his signature to the foregoing oath as magistrate of L., is a person duly qualified to administer oaths in the said town of L. 2. If the creditor is a company, the oath is taken by a partner : Compeared E. P., a partner of the firm of E. P. and Company, merchants in Glasgow, &c. 3. If the creditor is a body of executors, trustees, or tutors, one of them depones to the debt : Compeared E. P., merchant in Glas- gow, one of the accepting and acting executors of the deceased R. S., manufacturer in Glasgow, who, being solemnly sworn and 400 FORMS IN INSOLVENCY examined, depones, that H. I., manufacturer in Glasgow, was, at the date of the sequestration of his estates, and still is, truly in- debted and owing to C. D., P. 0., and the said E. F., all mer- chants in Glasgow, the accepting and acting executors of the said deceased E. S., &c. 4. If the creditor is a corporation, an oath of verity must he made hy the secretary, manager, cashier, clerk, or other principal officer : Compeared E. F., residing in Glasgow, manager of the [^enter desiffnatiori], &c. 5. If the creditor is under age, or incapable to mahe oath, then the following oath of credulity may he taken hy his authorised agent, factor, or manager: Compeared E. F., merchant in Glasgow, factor loco tutoris for IST. 0., residing in Glasgow, only surviving child of E. 0., manufacturer there, now deceased, who, being solemnly sworn and examined, depones, that he believes that H. I., manufacturer in Glasgow, was, at the date of the sequestra- tion of his estates, and still is, justly indebted and owing to the said N. 0., &c. 6. If the creditor is out of the kitigdom of Great Britain and Ire- land, his known agent or mandatory within it may make an oath of credulity in terms similar to the above : Compeared E. F., merchant in Glasgow, the known agent of G. H., merchant in Toronto, Upper Canada, who, being solemnly sworn and examined, de- pones, that he believes that H. I., &c. 7. Where the debt is past due, and interest has accrued thereon, then, after the words " per account produced," add: with the legal interest on said sum from the day of when the said account became due, till the date of said sequestration [or, till the date hereof, if the sequestration is not awarded^, amounting to £5, which, with the said principal sum, amounts in all to the sum of £105. 8. If the debt is not due till some future period, then the creditor, after the words "per account produced," may depone as follows: but under deduction of the sum of £5 sterling, being the interest on said account from this date till the same is payable, leaving a balance due to the said E. F. of £95. If the debt is liable to a discount beyond legal interest, then, instead of these words, add : but under deduction of said sum of £5 sterling, being the interest on said account from this date till the same is payable, and the farther sum of £10 sterling, being the discount to which the said debt is liable by the usage of trade, thus leaving a balance due to the deponent of £85 sterling. 9. If the creditor is a Quaker, Moravian, or Separatist, he may declare in the following way : Compeared A. B., merchant in Glas- gow, who, being solemnly examined, aflSrms and declares as fol- lows, viz. : I, A. B., being one of the people called Quakers [or one of the persuasions of the people called Quakers, or of the AKD BANKRUPTCY. 401 iiiiited brethren called Moravians, or of the body called Separatists, as the case may he], do solemnly, and sincerely, and truly declare and' aflBrm, etc. 10. If the Creditor is unwilling, from conscientious motives, to be sworn, he may declare in the following way: Compeared E. F., merchant in Glasgow, who, being solemnly examined, affirms and declares as follows, viz. : I, E. F., above designed, solemnly, sin- cerely, and truly affirm and declare that the taking of any oath IS according to my religions belief unlawful, and I do solemnly, sincerely, and truly affirm and declare, &o. Xo. XXIIl. Abbreviates for the Register of Inhibitions, and Certificate by Keeper ( Vide Schedule A, annexed to Act 1856, antea.) No. XXIV. Gazette Notice of Sequestration. ( Vide Schedule B, annexed to same Act, antea) No. XXV. Petition for Recall of Sequestration, and Gazette Notice. {Vide Act 1856, s. 31.) Unto the Honourable the Lord Ordinary officiating on the Bills, [Dah.'\ the petition of A. B., merchant in Glasgow, a creditor of D. E., after designed. Humbly showeth, — That on the day of , D. E., merchant in Glasgow, with the concurrence of F. G., also mer- chant there, an alleged creditor of the said D. E., to the extent required by law, presented a petition to the Sheriff of the County of Lanark for sequestration of his estates, under the " Bank- ruptcy (Scotland) Act 1856," and Acts explaining and amending the same, upon which application the said Sheriff pronounced a deliverance of the said date, awarding sequestration of the estates of the said D. E., and declaring the same to belong to his credi- tors, and appointing a meeting thereof for the election of a trustee. That it was inter alia set forth in the said petition, that the 2c 402 FORMS IN INSOLVENCY said D. E., for the year preceding the date thereof, had resided oi carried on business in Glasgow, in the county of Lanark, whicl: averment is untrae ; and the petitioner here alleges, and offers tc instruct if necessary, that the said D. E. never resided nor carried on business in Glasgow, nor in any part of the county of Lanark. That the said D. E. not having so resided or carried on busi- ness within the county of Lanark, as required by the Statutes, the said sequestration will fall to be recalled upon these grounds, That the petitioner is a creditor of the said D. E. to the extent of £ conform to oath and bill herewith produced. May it therefore please your Lordship, on considering this petition, to order a copy thereof, and of the deliverance to follow thereon, to be served upon the said D. E. and F. G. or on their respective known agents [and on the trustee, if appointed^, and require them to answer within a specified short time ; also order a notice of the presentation of this petition to be published in the ' Edinburgh Gazette,' and on the expiration of the time so fixed, and with or without answers, recall the said sequestration, and appoint the judg- ment of recall to be entered in the Eegister of Sequestra- tions, and on the margin of the Eegister of Inhibitions, all in terms of sect. 31 of the Statute first above mentioned : Find the respondents liable in expenses of process, and do otherwise in the premises as to your Lordship shall seem proper. According to justice. Gazette Notice of Petition for Recall of Sequestration. {Vide Act 1856, s. 31.) Notice. A. B., merchant in Glasgow, hereby gives notice that he has presented to the Lord Ordinary oflSciating on the BiUs, a petition for recall of the sequestration of the estates of C. D., merchant in Glasgow. Glasgow, Nov. 1, 1856. A. B. No. XXVL Petition for Sist of Sequestration, and Deliverances thereon. ( Vide Act 1856, s. 36.) [Dale.] Unto the Honourable the Lord Ordinary officiating on the Bills, [or the Sheriff of the county of Lanark.] The petition of A.B., AND BAKKRUPTCY. 403 writer in Glasgow, law-agent in the sequestration of D. E., merchant in Glasgow. The petitioner, A. B., Humbly showeth, — That on the day of the whole estates, wherever situated, of the said D. E., were sequestrated by the Lord Ordinary officiating on the Bills [or by your Lord- ship], by virtue of the " Bankruptcy (Scotland) Act 1856," and Acts explaining and amending the same, conform to the certified copy petition and deliverance thereon, herewith produced. That at the meeting for the election of trustee in said sequestra- tion, a majority in number and four-fifths in value of the creditors present or represented at said meeting, resolved, that the estate ought to be wound up imder a deed of arrangement, and that an application should be presented to your Lordship to sist procedure in the sequestration for a period not exceeding two months : And on said resolution being carried, the creditors did not proceed to the election of a trustee. That F. G., H. I., and J. K., all merchants in Glasgow, and creditors of the said D. E., present at the said meeting, being a minority of the creditors present or represented thereat, voted against the foresaid resolution, and protested that the said resolu- tion was not carried by the statutory majority of legal votes. That the petitioner was appointed by the meeting to report said resolution to your Lordship, and to apply for a sist of the seques- tration in terms thereof, all conform to the minute of said meeting of creditors and report in terms thereof, herewith produced. May it therefore please your Lordship, on considering this petition, to appoint such intimation thereof to be made to the said F. G., H. I., and J. K., as your Lordship may deem just, and ordain them to appear before your Lord- ship at such diet as may be appointed : And on again considering this petition, and after hearing parties having interest, if any, find that the said resolution was duly carried, and that this application is reasonable, and grant a sist of procedure in the said sequestration for a period not exceeding two months : AU. in terms of the said re- solution and of sect. 36 of the Statute first above men- tioned. According to justice. First Deliverance thereon. [Place and date.] — Having considered the foregoing petition, before answer appoints a copy thereof and of this deliverance to be served upon each of the creditors who voted against the resolution therein mentioned, or upon their mandatories or 404 FOKMS IN INSOLVENCY known agents, and appoints parties or their procurators to be heard, &o. Second Deliverance thereon. [Place and date.] — The Lord Ordinary [or Sheriff- Substitute] having considered the foregoing petition, with minutes and re- port therewith produced, and having heard the procurator for the petitioner, no appearance being made for the opposing creditors : Finds that a majority in number and four-fifths in value of [or all] the creditors or mandatories of creditors assembled at said meet- ing, have resolved that the estates of the bankrupt, D. E., ought to be wound up under a deed of arrangement, that such resolu- tion has been duly carried, and that the application is reasonable ; therefore sists procedure in the sequestration for the period of from this date. No. XXVII. Deed of Arrangement and Deliverances thereon, with Declaration hy Bankrupt. {Vide Act 1856, s. 38 ; and Act 1860, s. 5.) This deed of arrangement, entered into and executed by and between A. B., merchant in Glasgow, on the one part, and the sub- scribers named and designed in the testing clause hereof, creditors [or mandatories for creditors] in the sequestration of the said A. B., and constituting four-fifths in number and value of the whole creditors of the said A. B. on the other part, witnesseth that, upon the day of eighteen hundred and , the estates of the said A. B. were sequestrated by the Lord Ordinary officiating on the Bills by virtue of the " Bankruptcy (Scotland) Act 1856," and Acts explaining and amending the same [or, by the Sheriff of the county of Lanark] ; that at the statutory meeting of creditors, held at Glasgow, upon the day of for the election of trustee in the sequestration, a majority in number and four-fifths in value of the creditors present or represented at said meeting, resolved that the estate ought to be wound up under a deed of arrangement, and that an application should be presented to the Lord Ordinary [or the Sheriff] to sist procedure in the sequestration for the period of [not exceeding two months'] and on said resolution being carried, a trustee was not elected ; that M. K, writer in Glasgow, the law-agent in the sequestration, was appointed by the meeting to report said resolution to the Lord Ordinary [or the Sheriff], and to apply for a sist of the sequestration in terms thereof, and on said report and application AND BANKRaPTCY. 405 being made to the Lord Ordinary [or the Sheriff], and he having heard all parties having interest and compearing, and having found that said resolution was duly carried, and that the applica- tion was reasonable, granted the same. And whereas an arrange- ment having been effected in the terms underwritten, by and be- tween the said first and second parties, it is necessary that these presents should be entered into, therefore it is hereby arranged by and between the said parties as follows, viz., On the one part, the said A. B., as principal, and D. E., merchant in Glasgow, as cautioner, surety, and full debtor for and with the said A. B., do hereby bind and oblige themselves, jointly and severally, and their respective heirs, executors, and successors, to pay to each and all of the true and lawful creditors of the said A. B., the sum of 5s. per pound of the several debts and obligations contracted by him, or for which he was liable at the date of the sequestration of the estates of the said A. B., and that by two equal instalments pay- able at three and six months respectively after the date of the approval hereof and of the sequestration being declared at an end, together with the legal interest of the said composition, from and after the said respective terms of payment during the not-payment of the same, with a fifth part more of each payment, in name of penalty, in case of failure in the punctual payment thereof, as also to pay the whole expenses incurred in obtaining and fol- lowing forth the sequestration, and in carrying through and ob- taining the approval of this deed of arrangement. [Bills for the composition may be stipulated for.'] And the said A. B. and D. E. do hereby renounce all objections to those claims which have been lodged by the creditors, or are entered in the bankrupt's state of affairs ; and farther, the said A. B. and D. E. do hereby renounce and abandon all right of challenge against the creditors on the estate, so far as they may have aquired securities or pre- ferences over the estate, or any part thereof, always saving and excepting the right to challenge a deed [here describe itj. And the said A. B. binds and obliges himself and his foresaids to free and relieve and to keep harmless and scaithless the said D. E. and his foresaids of payment of all or any of the said sums, principal, in- terest, and penalty, and of all loss, damage, and expense, which the said C. D. may incur by becoming cautioner in manner foresaid. And, on the other part, the said creditors, or agents or mandatories for creditors of the said A. B.,have exonered and discharged, as they do by these presents, exoner, acquit, and for ever simpliciter dis- charge the said A. B. of all debts and obligations contracted by him, or for which he was liable at the date of said sequestration, and of all claims said creditors, or the constituents of said agents or manda- tories for creditors, had against the said A. B. at the date of said sequestration, reserving always the claims of the creditors for the said composition against the said A. B. and his cautioner, and also 406 FORMS IN INSOLVENCY reserving to such of them as hold collateral securities or obligations for the debts owing by the said A. B., their claims against such collateral securities or obligants as accords. And the said creditors, or agents or mandatories for creditors, hereby authorise and empower the said A. B., or his agent, to produce this deed of arrangement forthwith to the Sheriff for his approval, and to have the sequestration declared at an end. And the creditors foresaid, subscribing themselves and by their agents or mandatories, do hereby authorise (on this deed of arrangement being approved of, and the sequestration being declared at an end, in terms of the Statutes), an abbreviate of this deed, and the deliverance so declar- ing the sequestration at an end, to be recorded in the Eegister of Abbreviates of Adjudications at Edifiburgh, and also that the keeper of said register shall, if required, grant a certificate of such registration. \^This last-mentioned clause only to be inserted if a trustee has been elected, and an abbreviate of adjudication lodged hy Mm, in terms of s. 79.] Declaring always, that in the event of these presents not being approved of, or the said sequestration not being declared at an end, the claims of said creditors shall revive for their full debts in the same way as if these presents had not been granted. And farther, the said creditors, for all right and interest they have acquired by or through said seques- tration, do hereby renounce and discharge the same, and reinvest, restore, and retrooess the said A. B., his heirs, executors, and as- signees, in and to his whole estate, heritable and moveable, real and personal, wherever situated, belonging to the said A. B., at the date of his said sequestration, or subsequently acquired or succeeded to, together with all right created by the sequestration to prevent, challenge, or set aside preferences over the estate, so far as applies to the particular preference before mentioned, granted to M. N. ; surrogating and substituting the said A. B., and his foresaids, in their fuU right and place in the premises. And said creditors warrant this discharge at all hands, and against all mortals as law wiU. And the whole parties to this deed of ar- rangement consent to the registration hereof in the books of Council and Session, or others /competent, therein to remain for preservation, and if needful, that letters of horning on six days' charge, and all other execution necessary may pass upon a decree to be interponed hereto in form as effeirs, and thereto constitute procurators. In witness whereof, &c. First Deliverance, {Vide Act 1856, s. 38, note e.) [Place and datei\ — Having seen the deed of arrangement pro- duced before answer, appoints intimation of the production there- of and of this deliverance to be made by advertisement published AND BANKRUPTCY. 407 once in the 'Edinburgh Gazette' and 'North British Advertiser,' and also by circular posted to every creditor of the bankrupt who does not concur in the said deed, requiring all parties who desire to oppose the approval thereof to lodge in the hands of the Clerk of Court, a notice of appearance within ten days from the date of such publication or posting with certification, reserving thereafter to appoint a diet for hearing all parties interested, and to make any inquiry which may be deemed necessary. Mean- time appoints the said deed and the process to remain with the Clerk of Court subject to inspection. Second Deliverance. [Place and datei] — Ha^dng resumed consideration of this pro- cess and seen the 'North British Advertiser' and 'Edinburgh Gazette ' of date the and respectively, each containing the intimation ordered by the previous inter- locutor, together with certificates of posting of circulars to the non-concurring creditors, and no appearance being made to oppose the approval of the deed of arrangement, before pronouncing further appoints the bankrupt to appear before the Sheriff-Sub- stitute within his Chambers here, on the [date and hour\, to emit a declaration that the state of affairs produced is a correct state, that it or the relative documents contain a full and true list of all his creditors, and that there are no other non-concurring creditors than those to whom circulars have been sent, as con- tained in the said certificate, and that the said deed is subscribed by or by the authority of four-fifths in number and value of his creditors entitled to be computed in terms of the Bankrupt Statutes, at which diet allows all parties interested to be heard if they desire. Declaration. At the day of eighteen hundred and years, at o'clock noon, in presence of , in terms of the foregoing appointment : Com- peared the bankrupt A. B. (there being no other party interested present), who being interrogated declares that the state of his affairs produced in process, and subscribed as relative hereto, is a correct state ; that it or the documents therein referred to contain a full and true list of all his creditors, and there are no creditors who do not concur in the deed of arrangement produced other than those to whom circulars have been sent, as contained in the certificate produced, and which is also subscribed as relative hereto ; and further, that the said deed of arrangement is subscribed by or by the authority of four-fifths in number and value of his creditoi s entitled to be computed in terms of the Bankrupt Statutes ; all which he declares to be truth. 408 FORMS IN INSOLVENCY Final Deliverance. (To be written on deed of arrangenaent.) [Place and date.] — The Lord Ordinary \_or Sheriff-Substitute] having resumed consideration of tliis process of sequestration of the estates of \name and designation] awarded on the day of eighteen hundred and , together with the within deed of arrangement between (him) and (his) creditor produced in pro- cess on the day of (current), and having advised the declaration made of this date by the bankrupt, Finds that the said deed of arrangement has been duly entered into and executed and is reasonable, and hereby approves thereof and declares the said sequestration at .an end. Further, appoints the said deed, to- gether with this deliverance, to be recorded in the Sheriff Court books of Lanarkshire at Glasgow, all in terms of the " Bankruptcy (Scotland) Act 1856," and Acts explaining or amending the same. No. XXVIII. Petition hy the Bankrupt for Liberation, and DeliiTerances thereon, ^ Certificate ly Commissioners. (To be engrossed in sederunt-book, Act 1856, s. 125.) [Place and date.^ — We, commissioners in the sequestration of A. B., merchant in L., do hereby certify that the balance due by the trustee in his account with the estate, as at the expiration of four months from the date of the deliverance actually awarding sequestration, amounts to the sum of £ sterling. No. LV. Meeting of Commissioners. (Vide Act 1856, s. 125.) Minute of meeting of the commissioners in the sequestration of A. B., merchant in L., held at L. upon the day of , at o'clock — Present C. D., manufacturer, L. ; E. F., merchant, L. ; G. H., contractor, L. ; also I. J., accountant, L,, the trustee. The trustee having laid before the meeting a state of the whole estate of the bankrupt, of the funds recovered by him, and of the property outstanding (specifying the cause why it has not been recovered), and also an account of his intromissions, and generally of his management, the commissioners proceeded to examine the said state and account, and compare the same with the vouchers applicable thereto, and found the same correct, and certified, by a writing under their hands engrossed in the sederunt-book, the balance due by the trustee in his account with the estate. The commissioners ascertained that the trustee had duly lodged the monies recovered by him in bank. The commissioners fixed the trustee's commission at 5 per centum on the sum of £ , being the gross amount real- ised and recovered by him, and authorised him to take credit for such commission in his accounts with the estate. Lastly, the commissioners declared, after making a reasonable deduction for future contingencies, that the sum of £ of AND BANKEUPTCY. 437 the produce of the estate shall be divided among the creditors, in terms of the Statute. 0. D., Commissioner. E. F., Commissioner. G. H., Commissioner. No. LVI. Adjudication on Claims by Trustee. (Vide Act 1856, s. 126.) Adjudication by the trustee on claims lodged in the sequestration of , on or before the , being two months before the time fixed for payment of the first dividend. I. A, B., merchant in Glasgow. 1. Open account for goods furnished by the claimant to the bankrupt, from to , amounting to £32, 68. 8d. 2. Acceptance by the bankrupt to the claimant, dated , at four months' date, for £50. 3. Oath of verity by claimant, dated , claiming to be ranked for £82, 6s. 8d. Deliverance hy Trustee. There is an open account of £15 standing against the claimant in the books of the bankrupt, which falls to be deducted from the sum claimed as above. The claimant has omitted to deduct interest on the above bill from the date of sequestration till it became due. The trustee, therefore, admits the claim thus : — Amount claimed, ..... £82 6 8 Less Open account due by claimant, £15 Interest on said biU for £50, from date of sequestration till it be- came due, . . . . 3 11 15 3 11 Sum admitted, . . . £67 2 9 A. B., Trustee. 438 FORMS IN INSOLVENCY II. C. D. and Company, manufactureTS, Glasgow. 1. Open account for goods furnished to the bankrupt, from to , amounting to £ 2. Oath of verity thereto by B. F., one of the partners of the said 0, D. and Company, dated , Deliverance by Trustee. The trustee admits this claim. A. B., Trustee. III. G. H. and Company, merchants, Liverpool. 1. Account for goods furnished to the bankrupt on , amounting to £ 2. Oath of verity by K. L., one of the partners of the said G. H. and Company, dated , claiming a rank- .^ ing as a preferable creditor for the above £ , on the allegation that the goods were sold and delivered to the bankrupt after he knew he was insolvent and was contemplating bankruptcy. Deliverance by Trustee. The trustee rejects this as a preferable claim, in respect the goods referred to were delivered to, and in possession of, the bankrupt, before he had resolved to suspend payments. He, however, admits the claimants to a ranking as ordinary creditors. A. B., Trustee. No. LVII. AND BANKRUPTCY. 439 No. LVII. List of Creditors Banked. List of creditors on the sequestrated estate of M. N., merchant, IDate.] Glasgow, entitled to draw a dividend at the first statutory- period. Names of Creditors. Preferable. Ordinary. Contingent. 1. A. B., merchsuit, Glasgow. Amount of debt, £100 Interest thereon till date of sequestra- tion, , . .2 2. C. D. , majiufacturer, Glasgow. Amount of debt, £200 Interest aa above, 5 £102 3. K F., grocer, Glasgow. Amount of debt, £500 Interest as above, 20 £205 £520 But which claim is valued by the trustee at the sum of ^50 No. LVIII. List of Creditors Rejected. List of creditors on the sequestrated estate of M. N., merchant, Glasgow, whose claims have been rejected by the trustee, in whole or in part. Names of Creditors. Preferable. Ordinaiy. Contingent. G. H., silk-mercer, Glasgow, I. J., merchant there, . K. L., grocer there. £30 £100 £50 440 FOKMS IN INSOLVENCY No. LIX. Gazette Notice intimating First Dividend. {Vide Act 185&, s. 127.) Notice of Dividend. In tbe sequestration of 0. D., merchant, F., A. B., accountant in Glasgow, trustee, hereby gives notice that a first dividend will be paid within his counting-house, , upon the day of Glasgow, 18 A. B., Trustee. No. LX. Circular to Creditors intimating Dividend. (Vide Act 1856, s. 127.) [Place and date.^ Sib, — As trustee on the sequestrated estate of A. B., merchant in Glasgow, I hereby intimate that a dividend will be paid to those creditors whose claims have been admitted, at my cham- bers, , on the day of next. The amount of your claim as ranked is £ . [If claim rejected, state, — I have also to intimate that your claim, which amounts to £ , has been rejected ; and a copy of my deliverance is annexed.] The proposed dividend on claims admitted is per pound ; but in the event of my deliverances on claims rejected being appealed, the dividend will be per pound, or thereby, provided no additional claims of creditors are lodged within the statutory period fixed by section 124 of the " Bank- ruptcy (Scotland) Act 1856." Of all which notice is hereby given. — I am. Sir, your obedient servant, C. D., Trustee. To M. N., merchant, L. AND BANKRUPTCY. 441 No. LXI. Note of Appeal against Trustee's Deliverance. {Vide Act 1856, s. 127.) Note of appeal for A. B., merchant in Glasgow, in the sequestra- tion of C. D., merchant in Glasgow. That M. N., accountant in Glasgow, the trustee in the above sequestration, pronounced the following deliverance upon a claim for the appellant to be ranked as a creditor, and to draw a divi- dend from the said estate [copy deliverancel. That as the appellant considers himself aggrieved by the de- liverance above copied, he respectfully appeals against the same to the Sheriff of the county of Lanark, and craves that the said deliverance may be recalled, and that the trustee be ordered to rank the appellant as a creditor on the said sequestrated estate, to the effect of entitling him to participate in the first dividend payable in this sequestration, and that to the extent of the appel- lant's claim, with the interest that has accrued on the dividend set apart for the appellant. The appellant craves expenses against the trustee. In respect whereof. No. LXII. Scheme of Division. {Vide Aet 1856, s. 128.) Scheme of division among the creditors of M. N., merchant, Glasgow, payable the day of eighteen hundred and Names of Creditoks. Claims Admitted. Claims under Appeal. Amoimt of Claim. First Dividend of 5s. per pound. Amount of Claim. First Dividend of 5a, per pound. 1. A. B., merchant in Glasgow, . 2. CD., manufacturer there, 3. E. F., grocer there, £50 39 5 £12 10 9 16 3 £100 £25 £89 5 £22 6 3 £100 £25 442 FORMS IN INSOLYENCY No. LXIII. Petition for Acceleration of Dividend, Deliverance thereon, and Gazette Notice. {Vide Act 1856, s. 133.) [Date.] Unto the Honourable the Sheriff of the county of Lanark, the petition of A. B., accountant in Glasgow, trustee on the sequestrated estates of D. E., merchant in Glasgow. The petitioner, A. B., Humbly showeth, — That on the day of the estates of the said D. E. were sequestrated by the Lord Ordinary officiating on the BiUs \or by your Lordship], by virtue of the " Bankruptcy (Scotland) Act 1856," and Acts explaining and amending the same. That the petitioner has been elected and confirmed trustee on the said sequestrated estate, conform to act and warrant herewith produced. That, at the meeting of creditors in the said sequestration held after the bankrupt's examination, the petitioner was directed by three-fourths in number and value of the creditors present at the said meeting, to apply to your Lordship for authority to make the first dividend at the expiration of four months from the date of the deliverance actually awarding sequestration, in re- spect that all the funds of the estate have been recovered, and are ready for distribution, all conform to the minute of said meet- ing herewith produced. May it therefore please your Lordship, on considering this petition, with the minute of said meeting of creditors, to grant authority to the petitioner to make the first divi- dend to the creditors on the sequestrated estates of the said D. E., at the expiration of four months from the date of the deliverance actually awarding sequestration : Far- ther, and in order to accelerate the various matters pre- paratory to the payment of said dividend, in terms of section 133 of said Statute first above cited, grant autho- rity to the petitioner, immediately on the expiration of three months from the date of the deliverance actually awarding sequestration, to proceed and make up a state of the whole estate of the bankrupt, of the funds recovered by him, and of the property outstanding, and also an account of his intromissions, and generally of his manage- ment ; and grant authority to the commissioners, within seven days after the expiration of the said three months, to meet and examine such state and account, audit the AND BANKRUPTCY. US petitioner's acootints, and settle the amount of his com- mission, and authorise him to take credit for such com- mission in his accounts with the estate, and certify, by a writing under their hand, engrossed or copied in the sederunt-book, the balance due to or by the petitioner in his account with the estate as at the expiration of the said three months, and to do the other acts specified in section 125 of said Statute, and that in manner therein mentioned ; and also grant authority to the said petitioner to examine the oaths and grounds of debt, and, in writ- ing, reject or admit them, to complete the list of the creditors entitled to draw a dividend, and to do these and all the other acts specified in section 126 of said Statute, in manner therein mentioned, within the foresaid period of seven days : Farther, grant authority to the said peti- tioner to give notice in the ' Edinburgh Gazette ' pub- lished next after the expiration of said seven days, of the time and place of the payment of the dividend, and also to notify to the creditors, on or before the first lawful day after the said seven days, the various matters, and to do the other acts all specified in section 127 of the said Statute, and that in manner therein mentioned : And also grant warrant for immediate intimation, by advertise- ment in the ' Edinburgh Gazette,' and by notice posted to the creditors on the estate, of the acceleration of said dividend, in order that they may have their claims duly lodged, as to your Lordship may seem proper, all in terms of the said Statute first above mentioned. According to justice. Deliverance thereon. Glasgow, 18 . — The Sheriff- Substitute having considered the foregoing petition, with the minutes of meeting of creditors therein referred to, grants warrant and authority all as craved. Gazette Notice. Sequestration of D. E., merchant in Glasgow. A. B., accountant, Glasgow, trustee on the sequestrated estate of D. E., merchant in Glasgow, hereby intimates that the Sheriff of Lanarkshire has accelerated payment of the first dividend under this sequestration, by authorising the same to be made on the expiration of four months from the date of the deliverance actually awarding sequestration, and that accordingly the claims 444 FORMS IN INSOLVENCY of the creditors must be duly lodged with the subscriber on or before the day of 18 , in order to participate in said dividend. A. B., Trustee. No. LXIV. Gazette Notice intimating Postponement of Dividend. (VideA-ci 1856, s. 134.) A. B., accountant in Glasgow, trustee on the sequestrated estate of 0. D., merchant in Glasgow, hereby intimates, that the commissioners have postponed a dividend until the recurrence of another statutory period. A. B., Trustee. Glasgow, 1st. Nov. 1856. No LXV. Gazette Notice calling Meeting of Creditors to consider Offer of Composition. A. B., accountant, Glasgow, trustee on the sequestrated estate of C. D. and Company, hatters, Glasgow, as a Company, and C. D., hatter, Glasgow, the only known partner of said firm, as such partner and as an individual, hereby calls a general meeting of the creditors, to be held within the office of , on the at o'clock, to take into con- sideration an offer of composition to be made by the said C. D. A. B., Trustee. Glasgow, 1st Nov. 1856. No. LXVI. Offer of Composition. [Vide Minutes of Meeting of Creditors for Election of Trustee.) N.B.— 17& Act 1856, s. 140, note o, and s. 143, antea. AND BANKRUPTCY. Wi No. LXVII. Gazette Notice mtmatinff that Offer of Composition had been made, and calling Meeting. {Vide Act 1856, s. 137.) A, B., accountant in Glasgow, trustee on the sequestrated estates of C. D., merchant in Glasgow, hereby intimates, that at the meeting of creditors held upon the day of last, the bankrupt offered to the creditors a composition on his whole debts of per pound, payable months after his final discharge, with security, and that the creditors present unanimously entertained said offer for consideration ; and notice is hereby given that it will be decided upon at a meeting of the creditors, to be , held within the counting-house of the trustee, , Glasgow, upon the day of , 18 , at o'clock noon. Glasgow, , 18 A. B., Trustee. No. LXVIII. Circular hy Trustee, intimating Offer of Composition, and calling another Meeting. {Vide Act 1856, s. 137.) Glasgow, 18 Sir, — As trustee on the sequestrated estate of A. B., merchant in Glasgow, I hereby intimate that, at the general meeting of his creditors [or at a general meeting of his creditors, called in terms of notice in the ' Edinburgh Gazette' of ], held on the , the bankrupt made an offer of a composition of shillings per pound to his creditors, on his whole debts, payable \aceording to offer\ ; and he offered as his security. The bankrupt also offered to pay or provide for the whole expenses attending the sequestration and the remune- ration to the trustee. The creditors present at said meeting having unanimously resolved that the offer and security should be entertained for consideration, another meeting of creditors will be held within , upon the day of , at o'clock, for the purpose of finally decid- ing thereon. 446 FORMS IN INSOLVENCY In terms of section 136 of the " Bankruptcy (Scotland) Act 1856," I annex an abstract of the state of the affairB, and of the valuation of the estate, so far as can he done, to enable the credi- tors to judge of the said offer and security. — I am, Sir, your obedient servant. Abstract State of the Affairs and Valuation of the Estate. Assets. 1. Heritable property, . 2. Stock in trade, 3. Book debts, .... 4. Furniture, .... 5. Cash and bills receivable on hand, Liabilities. 1. Preferable, 2. Ordinary, Showing per pound, exclusive of the expenses of sequestration. No. LXIX. Bond of Caution for Composition. {Vide Act 1856, s. 138.) We, A. B., merchant in Glasgow, and D. E., merchant in Glas- gow, considering that upon the day of eighteen hundred and , the estates of the said A. B. were seques- trated by the Lord Ordinary officiating on the BiUs, in terms of the " Bankruptcy (Scotland) Act 1856," and Acts explaining and amending the same \or by the Sheriff of the county of Lanark] ; that, at the statutory meeting of creditors, held at Glasgow upon the day of thereafter, H. I., accountant in J., was elected trustee in the sequestration, and his election was thereafter duly declared and confirmed in terms of the Statutes ; that at the said meeting I, the said A. B., offered a composition to my creditors, of 5s. per pound on my whole debts, payable in two equal instalments at three and six months after the date of my final discharge, and proposed me, the AND BANKRUPTCY. 447 said D. E., as security for payment of the same ; that a majority of the creditors in mimber and nine-tenths in value, present at said meeting, resolved that the offer and security should be enter- tained for consideration ; that the trustee forthwith advertised in the ' Edinburgh Gazette,' a notice that said offer of composition had been so made and entertained, and that it would be decided upon at the meeting to be held after the examination of the bank- rupt, and specified the hour, day, and place, and also transmitted by post letters to each of the creditors claiming on the estate, or mentioned in the bankrupt's state of affairs, containing a notice of said resolution, and of the day and hour at which, and the place where said meeting was to be held, and specifying the offer and security proposed, and giving an abstract of the state of affairs and of the valuation of the estate, so far as the same could be done, to enable the creditors to judge of said offer and security ; that at the meeting after the examination of the bankrupt, a majority in number and nine-tenths in value of the creditors there assembled accepted said offer and security. And seeing it is necessary, in terms of the Statutes, that this bond of caution for payment of the composition should be executed, therefore I, the said A. B., as principal, and I, the said D. E., as cautioner, surety, and full debtor, for and with the said A. B., do hereby bind and oblige ourselves, jointly and severally, and our heirs, executors, and successors, to pay to each and all of the true and lawful creditors of me, the said A. B., the sum of 5s. per pound of the several debts and obligations contracted by me, or for which I was liable, to said creditors respectively, at the date of the sequestration of the estates of me, the said A. B., and that by two equal instalments payable at three and six months respec- tively after the date of the final discharge of me, the said A. B., together with the legal interest of the said composition, from and after the said respective terms of payment, during the not-pay- ment of the same, with a fifth part more of each payment in name of penalty, in case of failure in the punctual payment thereof. And I, the said A. B., bind and obUge myself and my foresaids, to free and relieve, and to keep harmless and scaith- less, the said D. E. and his foresaids, of payment of all or any of the said sums, principal, interest, and penalty, and of all loss, damage, and expense which I, the said C. D., may incur by becoming cautioner in manner foresaid. And we consent to the registration hereof in the Books of Council and Session, or others competent therein, to remain for preservation, and, if necessary, that letters of homing on six days' charge, and all other legal execution, may pass upon a decree to be interponed hereto, in form as effeirs ; and to that effect we constitute our procurators, &o. In witness whereof 448 FOEMS IN INSOLVENCY No. LXX. Report ly Trustee on Offer of Composition. {Vide Kct 1856, s. 138.) Eeport by C. D., accotintant in Glasgow, trustee on the sequestrated estate of A. B., mercliant, Glasgow. To the Sheriff of the county of Lanark. In terms of the 138th section of the " Bankruptcy (Scotland Act 1856," the trustee reports to your Lordship that, at tht second general meeting of creditors [or at a general meeting called for the purpose], held within the , upon the day of , at o'clock , foi the purpose of deciding upon an offer of composition made by the bankrupt, the creditors, and mandatories for creditors then pre- sent, unanimously \or as the case may 6e] agreed to accept of a composition of in the pound, on their respective debts, as at the date of sequestration, payable , and approved of as security for payment of the said composition. The trustee herewith produces the minutes of said meeting ; together with the minute of the previous meeting of creditors when the offer was entertained ; as also a copy of the ' Edinburgh Gazette' containing the requisite statutory notice and certificate of posting of the circulars to the creditors ; and, lastly, the bond of cautiou by the said and the said as cautioner, dated the day of 18 . The trustee also reports that his accounts have been audited by the commissioners, and the balance ascertained, and his remu- neration fixed ; and that the expenses attending the sequestration and said remuneration have been paid \or provided for], to the satisfaction of the trustee and commissioners. Humbly reported by C. D., Trustee. Glasgow, ,18 No. LXXI. Certificate hy Trustee to enable Creditor to recover Composition. (Vide Act 1856, s. 138, note e.) {Place and date.] I, A. B., accountant in C., lately trustee in the sequestration o D. E., merchant in C, do hereby certify that F. G., manufacturer AND BANKRUPTCY. 449 C, was duly ranked as a creditor on the estate for a debt amounting to £ [or that F. G. was given up by the bankrupt, in his state of aflfairs, as a creditor on the estate for a debt amounting to £ ; or that F. G. duly lodged in the sequestration an oath and claim for a debt of £ , and that in the acceptance of an offer of composition, upon which the bankrupt was discharged as after mentioned, he was admitted without question to be reckoned as a creditor for said debt], and that the said sequestration was closed by composition, and the bankrupt discharged by the Lord Ordinary officiating on the Bills [or Sheriff of the county of L.] on the day of A. B., Trustee. N.B. — This certificate, with an extract of the bond, will warrant letters of horning. No. LXXII. Deliverance Approving of Offer of Composition. (May be written on trustee's report.) Glasgow, 18 . — Having considered the foregoing report, with the minute of meeting of creditors, and bond of caution therein referred to, and no appearance or objection being made by any of the creditors, finds that the offer of composition, with the security therein mentioned, has been duly made, and is reasonable, and has been accepted by a majority in number, and four-fifths [or nine-tenths, as the case may ie] of aU the creditors or mandatories of creditors assembled at said meeting ; therefore approves of the said offer, with the security ; but before granting the discharge, appoints the bankrupt, A. B., to appear and make a declaration, in terms of the Statutes. No. LXXIII. Deliverance Approving of Offer of Composition made hy Executrix. Glasgow, 1st November 1856. — Having considered the fore- going petition, with the report by the trustee, minutes of meeting of creditors, and bond of caution therein referred to, finds that the offer of composition, with the security mentioned in the petition, has been duly made, and is reasonable, and has been accepted 2 F 450 FOKMS IN INSOLVENCY by a majority in number and four -fifths in value of the orec tors or mandatories of creditors assembled at the said meetiuj therefore approves of said ofier, with the security ; but, befc granting a discharge, appoints the petitioner to appear and ma a declaration, in terms of the Statutes. No. LXXIV. Declaration hy Bankrupt. At Glasgow, the 1st day of November 1856. In presence , Sheriff-Substitute of Lanarkshire : Compeared t bankrupt, who, being interrogated, declares that has made a full and fair surrender of his estate, and has r granted or promised any preference or security, or made or pi mised any payment, or entered into any secret or collusive agn ment or transaction to obtain the concurrence of any of his cre( tors to the offer of composition made by him to them, or to t security for the same. And this he declares to be truth. No. LXXV. Declaration hy Executrix. At Glasgow, the 1st day of November 1856. In presence , Esquire, Sheriff-Substitute of Lanarkshire : A peared Mrs A. B. or D., the petitioner, widow of the deceas C. D., the bankrupt, and executrix decerned to him, who, beii interrogated, declares that, to the best of her knowledge a: belief, a full and fair surrender of the estates of the said deceas has been made under the sequestration ; and the declarant has i granted or promised any preference or security, or miide or p: mised any payment, or entered into any secret or collusive agr( ment or transaction to obtain the concurrence of any of the crC' tors to the offer of composition made by her to them, or to 1 security for the same. And this she declares to be truth. No. LXXVI. Discharge to Bankrupt. Glasgow, 1st November 1856.— The Sheriff- Substitute havi advised the declaration made, of this date, by the bankrupt, A. AND BANKRUPTCY. 451 mercliant in Glasgow, finds the same satisfactory, discharges the said A. B. of all debts and obligations contracted by Lim, or for which he was liable, at the date of the sequestration [ 18 ] ; declares the sequestration to be at an end, and the bankrupt reinvested in his estate ; reserving always the claims of the creditors for the composition against him and the cautioner ; appoints the bond of caution to be recorded in the Sheriff Court Books of Lanarkshire at Glasgow ; and allows an act and warrant to go out and be extracted, all in terms of the " Bankruptcy (Scotland) Act 1856," and Acts explaining and amending the same. No. LXXVII. Discharge to the Partners of a Company, as Partners and as Individuals. Glasgow, 1st Nov. 1856. — The Sheriff- Substitute having ad- vised the declaration made, of this date, by the bankrupts A. B. and C. D., merchants in Glasgow, the individual partners of the firm of A. B. and Company, merchants there, finds the same satis- factory, discharges the said A. B. and C. D. of all debts and obli- gations contracted by them, or for which they were liable, either as partners foresaid, or as individuals, at the date of the seques- tration [ 18 ] ; declares the sequestration to be at an end, and the bankrupts reinvested in their estates; reserving, &c. \as before]. No. LXXVIII. Discharge to the Partners of a Company, as Partners. Having advised the declaration, &o. \as in the first example], discharges the said A. B. and C. D. of all debts and obligations contracted by them, or for which they were liable, as partners fore- said, at the date of the sequestration [ 18 ] j de- clares the sequestration to be at an end, so far as regards the said A. B. and C. D., as partners foresaid, and the said A. B. and C. D. reinvested in their estates, as partners foresaid ; reserving always the claims of the creditors, &c. [as before]. 452 FORMS IN INSOLVENCY No. LXXIX. Discharge to the Partners of a Company, as Individuals only. Having advised the declaration made, of this date, by the bank- rupts, A. B. and C. D., merchants in Glasgow, the individual partners of the firm of A. B. and Company, merchants there, finds the same satisfactory ; discharges the said A. B. and C. D. of aU debts and obligations contracted by them, or for which they were liable, as individuals, at the date of the sequestration [ 18 ] ; declares the sequestration to be at an end, so far as regards the said A. B. and 0. D., as individuals, and them reinvested in their individual estates ; reserving always the claims of the creditors, &c. [as before^. No. LXXX. Discharge to one Partner of a Company, as Partner and as an Individual. Glasgow, IstNov. 1856. — Having advised the declaration made, of this date, by the bankrupt, A. B., merchant in Glasgow, one of the individual partners of the firm of A. B. and Company, mer- chants there, finds the same satisfactory; discharges the said A. B. of all debts and obligations contracted by him, or for which he was liable, either as partner foresaid or as an individual, at the date of the sequestration [ 18 ] ; declares the sequestra- tion to be at an end, so far as regards the said A. B., as partner foresaid and as an individual, and him reinvested in his estates as partner foresaid, and as an individual ; reserving always the claims of the creditors, &c. [as before^. No. LXXXI. Discharge to a Partner offering a Composition on the Company's Estate. Glasgow, 1st Nov. 1856. — Having advised the declaration made, of this date, by the bankrupt, A. B., merchant in Glasgow, one of the individual partners of the firm of A. B. and Company, mer- chants there, finds the same satisfactory; discharges the said A. B. of all debts and obligations contracted by him, or for which he was liable, either as partner foresaid or as an individual, at the date of the sequestration [ 18 ] ; declares the sequestra- AND BANKRUPTCY. 453 tion to be at an end, so far as regards the said A. B. as partner foresaid or as an individual, and him reinvested in his estate as partner foresaid and as an individual, reserving to him to obtain from the trustee a conveyance of, or othervrise to obtain himself invested in, the whole estates of the said company, in terms of his offer, and reserving always the claims of the creditors, &o. [as be- fore]. N.B. — Vide Act 1856, s. 140, note n, antea. No. LXXXIT. Discharge to an Executrix. Glasgow, 1st Nov. 1856. — Having advised the declaration made, of this date, by the petitioner, Mrs A. B. or D., residing in Street, Glasgow, widow of the deceased C. D., merchant in Glas- gow, the bankrupt, and decerned executrix dative qua, relict to the said deceased, conform to decree of the Commissary of Lanark- shire, dated the day of , finds, the same satisfactory ; discharges the petitioner, and the representatives and estates of the said deceased C. D., of all debts and obligations contracted by him, or for which he was liable at the date of his death, or for the payment of which his estates were liable at the date of the sequestration of the same [ 18 ] ; declares the sequestration to be at an end, and for all obstacles which it otherwise might have offered, declares the petitioner now entitled to complete her title, and have herself confirmed executrix dative qua, relict to her said deceased husband, or omne habile modo to take up and obtain herself invested in the bankrupt's moveable estate, the said deceased having left no lieritable estate; reserving always the claims of the creditors, &c. [as before]. No. LXXXIII. Discharge to the Heir of a Bankrupt. Glasgow, 1st Nov. 1856. — The Sheriff-Substitute having ad- vised the declaration made, of this date, by A. B. [designatiori], eldest son, heir-at-law, and successor to the deceased C. D. [de- signation], finds the same satisfactory ; discharges the said A. B., and the representatives and estate of the said deceased, of all debts and obligations contracted by the said C. D., or for which he was liable at the date of his death, or for which his estates were liable at the date of the sequestration of the same [ 18 ] ; declares the sequestration to be at an end, and for all 454 FORMS IN INSOLVENCY obstacles which it might otherwise have offered, declares the said A. B. now entitled, omTie habili modo, to take up and obtain him- seK invested in the bankrupt's estates, or to obtain a conveyance thereof from the trustee, in terms of the conditions of the offer ; reserving always the claims of the creditors, &c. No. LXXXIV. Discharge to a Successor where the Bankrupt has died after Sequestration. The only differences in this case are in the declaration, where the successor says, " that, to the best of his knowledge and belief, the bankrupt, previous to his death, had made a full and fair sur- render of his estates, and the declarant has not granted or pro- mised," &o. [as before^ ; and in the discharge, where all debts and obligations due at the date of the sequestration only, and not at the date of death, are discharged. No. LXXXV. Gazette Notice of Meeting of Creditors for Winding up Estate. (Vide Act 1856, s. 136.) A. B., accountant in Glasgow, trustee on the sequestrated estates of C. D., merchant in Glasgow, hereby intimates to the cre- ditors on the said sequestrated estates, that twelve months having now elapsed from the date of the deliverance actually awarding sequestration, and it appearing to the trustee and commissioners on the estate expedient to sell the heritable and moveable estates not disposed of, and any interest which the creditors have in the outstanding debts and consigned dividends, they hereby fix the day of , at o'clock, within the trustee's writing chambers. No. Street, Glasgow, for holding a meeting of the creditors to take the same into con- sideration. A. B., Trustee. Glasgow, 1st Nov. 1856. AND BANKRUPTCY. 455 No. LXXXVI. Petition for Trustee's Discharge where Estate wound up by Composition Contract. {Vide Act 1856, s. 142, note a.) Unto the Honourable the Sheriff of the county of Lanark. The [Dale.} petition of A. B., accountant in Glasgow, trustee on the sequestrated estates of D. E., merchant in Glasgow. The petitioner, A. B., Humbly showeth. — That on the day of the estates of the said D. E. were sequestrated by the Lord Or- dinary officiating on the Bills [or by your Lordship], by virtue of the " Bankruptcy (Scotland) Act 1856," and Acts explaining and amending the same. That at the first general meeting of creditors in the sequestra- tion, the petitioner was duly elected trustee, and, having proposed F. G., merchant in Glasgow, as his security, the meeting unani- mously approved of the same, and fixed the sum to which the security should extend at £500 sterling. That the petitioner's election having been declared by the de- liverance of your Lordship, the petitioner, along with the said F. G-., duly executed and lodged vnth the Clerk of your Lordship's Court, a bond of caution, in terms of the Statutes. That the bankrupt, having made an offer of composition to his creditors, with the security of M. N., manufacturer in Glasgow, and the said offer and security having been entertained and ulti- mately accepted, your Lordship, of date the day of , pronounced a deliverance discharging the bank- rupt, declaring the sequestration at an end, and reinvesting the bankrupt in his estates. That in respect the commissioners on said estate duly audited the petitioner's accounts prior to said discharge being pronounced, and ascertained that there was no balance due by him to the estate, conform to docqueted accounts herewith produced, and in respect of the cofisent of the bankrupt and his cautioner to this petition, the petitioner respectfully applies to your Lordship for exoneration, and for an order to get up the said bond. May it therefore please your Lordship, on considering this petition, to exoner and discharge the petitioner, the said A. B., of all his actings and intromissions as trustee on the sequestrated estates" of the said D. E., and grant war- rant to, and ordain the Clerk of your Lordship's Court to 456 FORMS IN INSOLVENCY deliver up to the petitioner his said bond of caution, al in terms of said Statutes, and do otherwise. According to justice. Deliverance thereon. Glasgow, 1st Nov. 1856. — Having considered this petition consents by the bankrupt and the cautioner for the composition both noYf produced, and in respect the trustee has transmitted t( the Accountant in Bankruptcy the sederunt-book, conform t( acknowledgment produced, exoners and discharges the petitioner the said A. B., accountant in Glasgow, of all his actings anc intromissions as tnistee on the said sequestrated estate, an( grants warrant to, and ordains the Clerk of Court to deliver uj to the petitioner his bond of caution ; and allows an act ant warrant to go out and be extracted, all in terms of the " Bank ruptcy (Scotland) Act 1856." No. LXXXVII. Petition for Bankrupt's Discharge without a Composition. [Vide Act 1856, s. 146.) [Date.] Unto the Honourable the Sheriff of the county of Lanark. Tht petition of A. B., merchant in Glasgow. The petitioner, A. B., Humbly showeth, — That on the day of th( whole estates, wherever situated, of the petitioner, were seques- trated by the Lord Ordinary officiating on the Bills [or by youj Lordship], in terms of the " Bankruptcy (Scotland) Act 1856,' and Acts explaining and amending the same, and at the statutor3 meeting for the election of trustee, held upon the day o , D. E., accountant in C, was unanimously elected truste* on the said sequestrated estate. That six months have now expired from the date of the de liverance actually awarding sequestration, and the petitioner ii desirous of being finally discharged of all debts contracted bi him before the date of the sequestration, and has, accordingly procured the concurrence in this petition, of a majority in numbe: and four-fifths in value of the creditors, who have produce( oaths in the sequestration, all conform to the trustee's certificate and consent of the creditors, herewith produced. That the trustee has, in terms of the Statute first above men tioned, prepared a report with regard to the conduct of the peti AND BANKRUPTCY. 457 tioner, and as to how far he has complied with the provisions of the said Act, which report is herewith produced. May it therefore please your Lordship, on considering this petition, to order the same to be intimated in the ' Edin- burgh Gazette,' and to each of the creditors in the seques- tration. And if, at the distance of not less than twenty- one days from the publication of such intimation, there be no appearance to oppose the same, or, in the event of appearance being made, and objections stated against granting the discharge, if the same be repelled, to pro- nounce a deliverance finding the petitioner entitled to a discharge. And, on again considering this petition, with the declaration or oath made by the petitioner, in terms of said Statute, and on being satisfied with said oath or declaration, pronounce a deliverance discharging the peti- tioner of all debts and obligations contracted by him, or for which he was Hable at the date of the sequestration, all in terms of s. 146 of the Statute first above mentioned, and do otherwise as to your Lordship shall seem proper. According to justice. No. LXXXYIII. Report hy the Trustee on Conduct of Bankrupt. {Vide Act 1856, s. 146.) Eeport by A. B., accountant in Glasgow, trustee on the seques- trated estate of C. D., merchant in Glasgow. The trustee has to report, in terms of the 146th section of the " Bankruptcy (Scotland) Act 1856," that the aforesaid C. D. has complied with all the provisions of the Statute ; that he believes that the bankrupt has made a fair discovei-y and surrender of his estate ; that he has attended the diets of examination, and has not, so far as known to the trustee, been guilty of any collusion, but that his bankruptcy has arisen from innocent misfortunes \or losses in business], and not from culpable or undue conduct. A, B., Trustee. Glasgow, 18 . 458 FORMS IN INSOLVEXCY No. LXXXIX. Concurrence by Creditors to Discharge of Bankrupt without Composition. {Vide Act 1856, s. 146.) Glasgow, 18 . We, being creditors, or mandatories for creditors, of A. B., merchant in Glasgow, having seen the report by the trustee on his sequestrated estate, dated the day of 18 , do hereby concur in a petition to be presented by him to the Lord Ordinary, or to the Sheriff of , to be finally dis- charged of all debts contracted by him before the date of the se- questration of his estates, in terms of and under the provisions of the " Bankruptcy (Scotland) Act 1856," and Acts explaining and amending the same. No. XC. Gazette Notice of Petition hy Bankrupt for Discharge without Composition. {VideKoi 1856, s. 146.) To the creditors on the sequestrated estates of A. B., merchant in Glasgow. By virtue of an order of the Sheriff- Substitute of Lanarkshire, A. B., above designed, hereby intimates that he has presented a petition to the Sheriff of Lanarkshire, at Glasgow, to be finally discharged of all debts contracted by him before the date of the sequestration of his estates, in terms of the Statutes. A. B. Glasgow, 1st November 1856. No. XCI, Discharge without Composition. First Deliverance. Glasgow, 18 . — Appoints this petition to be intimated in the ' Edinburgh Gazette,' and by circular to each creditor, in terms of the Statute. [Where it is an application after two years, and without consent, add: Farther, appoints a copy of the said petition, and of the trustee's report on the bankrupt's conduct. AND BANKRUPTCY. 459 produced herewith, and of this deliverance, to be transmitted by post to the Accountant in Bankruptcy, that he may have an op- portunity of reporting whether the bankrupt has fraudulently concealed any part of his estate or effects, or whether he has wilfully failed to comply with any of the provisions of the " Bankruptcy (Scotland) Act 1856," with certification that if he makes no report within twenty-one days after the date of such transmission, he will be held as admitting that he has nothing unfavourable to the bankrupt to report on these two heads.] Second Deliverance. Glasgow, 18 . — Having resumed consideration of the foregoing petition, with the report by the trustee on the bankrupt's conduct [concurrence by the creditors, and relative certificate by the trustee], and having seen the ' Edinburgh Gazette ' of the last, containing the intimation ordered by the previous interlocutor, and certificate of the like intimation having been posted to each of the creditors, in respect twenty-one days have now elapsed since the publication and posting of the said intima- tions, and that no appearance has been made to oppose the prayer of the petition, finds the bankrupt petitioner entitled to his dis- charge ; but before granting the same, appoints him to appear and make a declaration in terms of the Statutes. No. XCII. Declaration ly Bankrupt. At Glasgow, the day of , eighteen hundred and fifty years, in presence of , Esquire, advocate, Sheriff-Substitute of Lanarkshire, — Appeared the bankrupt petitioner, A. B., who, being interrogated, declares that he has made a full and fair surrender of his estates, and has not granted or promised any preference or security, or made or promised any payment, or entered into any secret or collusive agreement or transaction, to obtain the concurrence of any of the creditors to his discharge. And this he declares to be truth. No. XCIII. Discharge of Bankrupt without Composition. Glasgow, 18 . — Having advised the declaration made, of this date, by the bankrupt petitioner, A. B., merchant in 460 FORMS IN INSOLVENCY Glasgow, finds the same satisfactory; discharges the said A. B. of all debts and obligations contracted by him, or for which he was liable at the date of the sequestration [ 18 ], and allows an act and warrant to go out and be extracted, all in terms of the " Bankruptcy (Scotland) Act 1856," and Acts ex- plaining and amending the same. No. XCIV. Abbreviate, ^c, of BanJcrupfs Discharge. ( Vide Schedule A, annexed to Act 1857, antea) No. XCV. Summons of Multiplepoindiny against Creditor who has obtained Preference for his Concurrence in Bankrupt's Discharge. {Vide Act 1856, s. 150.) Sir Archibald Alison, Baronet, advocate. Sheriff of the county of Lanark. To officers of Court, jointly and severally : — Whereas it is shown to me by A. B., merchant in Glasgow, pursuer against C. D., merchant in Glasgow, a creditor in the sequestration of E. F., merchant in Glasgow, and all the creditors who were ranked or were entitled to be ranked in the said sequestration, and have not received full payment of their debts, and who shall lodge claims in this process (the said C. D. being the real raiser hereof), defenders, in terms of the conclusions under-written : Therefore it should be declared that the pursuer is holder of a fund in medio, consisting (1) of the sum of £100 sterling, more or less, being double the value or amount of a preference, gratuity, security, payment, or other consideration granted, made, or pro- mised, by the said E. F. to the pursuer, for concurring qua cre- ditor in the said E. F.'s discharge in his sequestration, or for facilitating or obtaining said discharge under the " Bankruptcy (Scotland) Act 1856," (2) and of the sum of £200, being the amount of the pursuer's debt claimed by him in the said seques- tration, conform to his oath, lodged by him with the trustee, and is only liable in single payment of the said fund to those having right thereto, and the defender, and all others of the creditors of the said D. E., who were ranked or were entitled to be ranked in the sequestration, and have not received full payment of their debts, should produce their claims, and the pursuer should be decerned to pay the said fund, deducting his expenses of process AND BANKRUPTCY. 461 in sucli way as may be just, and in terms of said Statute ; and such of the defenders as shall be found to have no right should be prohibited from troubling him in time coming. And my will is that ye summon the pursuer to compear in my Court House, at Glasgow, upon the sixth day next after the date of your citation, in the hour of cause, with continuation of days, to answer in the premises, with certification, in case of failure, of being held as confessed ; as also that notice hereof be inserted in the ' Edin- burgh Gazette,' in terms of the Statute above cited. Given at Glasgow, the day of , eighteen hundred and years. No. XCVI. Gazette Notice calling Meeting to consider as to Trustees Discharge. A. B., accountant in Glasgow, trustee on the sequestrated estate of C. D., merchant in Glasgow, hereby calls a meeting of the creditors to be held within his office, on the day of , at o'clock , to consider as to an application to be made for the trustee's discharge. A B., Trustee. Glasgow, 18 . No. XCVII. Circular to Creditors in reference to Trustee's Discharge. [^Place and date.] Sib, — As trustee on the sequestrated estate of , I hereby call a general meeting of the creditors on said estate, to be held within , upon the day of next, at o'clock , to consider as to an application to be made for my discharge as trustee foresaid. — I am, Sir, your obedient servant, (Signed) No. XCVIII. Petition for Trustee's Discharge after Final Division of Funds, and Deliverance thereon. {VideKcl 1856, s. 152.) Unto the Honourable the Sherifi" of the county of Lanark. The [fla(«.] petition of A. B., accountant in Glasgow, trustee on the sequestrated estates of D. E., merchant in Glasgow. 462 FOEMS IN INSOLVENCY The petitioner, A. B., Humbly showeth, — That on the day of , the estates of the said D. E. were sequestrated by the Lord Ordinary officiating on the Bills [or by your Lordship], by virtue of the " Bankruptcy (Scotland) Act 1856," and Acta ex- plaining and amending the same. That the petitioner was elected trustee in said sequestration at the meeting of creditors held on the day of , and his election was thereafter duly declared and confirmed, as shown by the act and wairant herewith produced. That a final division of the funds of the estate having taken place, the petitioner called a meeting of the creditors by an advertisement in the ' Edinburgh Gazette,' to be held not sooner than twenty-one days after said publication, specifying the time, place, and purpose of holding the meeting, and by letters ad- dressed by post to every creditor who had produced an oath as aforesaid, to consider as to an application for his discharge, and at said meeting the petitioner laid before the creditors the sederunt- book and accounts, with a list of unclaimed dividends, and the creditors then declared themselves satisiied with his conduct as trustee, all conform to Gazette and minutes of meeting herewith produced. That the petitioner, in terms of the first-mentioned Statute, transmitted the sederunt-book to the Accountant in Bankruptcy, who thereupon directed the petitioner to deposit the unclaimed dividends in the same bank in which money received by him was lodged under the provisions of the said Act ; and the petitioner having forthwith transferred the whole dividends not then claimed to said bank, which have been there entered in an account kept under the title of " Account of Unclaimed Dividends," the peti- tioner now respectfully makes the following application for his discharge. May it therefore please your Lordship, on advising this petition and hearing any creditor, if any should appear, to pronounce decree of exoneration and discharge in favour of the petitioner as trustee foresaid, and grant warrant to the Clerk of Court to deliver up to the peti- tioner the bond of caution lodged by him, all in terms of s. 152 of the Statute first above-mentioned, and do otherwise as to your Lordship shall seem proper. According to justice. Deliverance thereon. Glasgow, 1st Nov. 1856. — Having considered the foregoing petition, and seen the ' Edinburgh Gazette,' and minutes of AND BANKRUPTCY. 463 meeting of creditors therein referred to, as also the acknowledg- ment by the Accountant in Bankruptcy for the sederunt-book, and receipt for the unclaimed dividends, and no party appearing to object, exoners and discharges the petitioner, A. B., accountant in Glasgow, of his whole actings and intromissions as trustee on the sequestrated estate of C. D., merchant in Glasgow, and grants warrant to, and authorises the Clerk of Court to deliver up to the said A. B. the bond of caution for him as trustee foresaid, and allows an act and warrant to go out and be extracted, all in terms of the " Bankruptcy (Scotland) Act 1856," and Acts ex- plaining and amending the same. No. XCIX. Petition to uplift Dividend. (Vide Act 1856, s. 153.) Unto the Honourable the Lord Ordinary officiating on the Bills. [Date.] The petition of A. B., merchant in Glasgow, a creditor on the sequestrated estate after-mentioned, Humbly showeth, — That, on the day of , the estates of D. E., merchant in Glasgow, were sequestrated in terms of the " Bankruptcy (Scotland) Act 1856," and Acts ex- plaining and amending the same, and F. G. was duly elected and confirmed as trustee thereon. That, prior to the trustee obtaining his discharge, he trans- ferred the whole unclaimed dividends in the sequestration to the Bank of Scotland, and. inter alia, an unclaimed dividend due to the petitioner, amounting to £ , which is duly entered in the petitioner's name in the account of unclaimed dividends kept by the bank. That, in consequence of absence from this country, the peti- tioner was unable to claim said dividend prior to the trustee's discharge, which was granted on the day of The petitioner herewith produces a certificate of his ranking under the hands of the trustee. May it therefore please your Lordship to grant warrant to the Bank of Scotland for payment to the petitioner of the said unclaimed dividend, amounting to £ , falling to the petitioner as a creditor on the seques- trated estate of the said D. E., all in terms of s. 153 of the Statute first above-mentioned, and do otherwise as to your Lordship may seem proper. According to justice. 464 FORMS IN INSOLVENCY No. C. Report hy Trustee to Sheriff of Resolution of Creditors that Bankrupt only entitled to Decree of Cessio. {Vide Act 1856, s. 168.) Report by A. B., accountant in Glasgow, trustee on the seques- trated estate of C. D., merchant in Glasgow. To the Sheriff of the county of Lanark. In terms of the 168th section of the " Bankruptcy (Scotland) Act 1856," the trustee reports to your Lordship that, at a general meeting of creditors held within the , upon the day of 18 , at o'clock , called for the purpose, the creditors and mandatories for creditors present were unanimously of opinion that the estate was not likely to yield free funds for division among the ordinary creditors, after payment of preferable debts and expenses, beyond one hundred pounds, and accordingly resolved that the bankrupt should only be entitled to apply for and obtain a decree of cessio, and should have no right to a discharge in the sequestration. Humbly reported by [Date.] A. B., Trustee. No. CI. Note of Appeal to Sheriff against Resolution of Creditors. {Vide Act 185G, s. 169.) Date.'] Note of appeal for A. B., merchant in Glasgow, in the seques- tration of C. D., merchant in Glasgow. That a meeting of creditors in the above sequestration was held at Glasgow, upon the day of , when the fol- lowing resolution was adopted by a majority of the creditors \_copy resolution]. The appellant is a creditor in the said sequestration, and as he considers himself aggrieved by the resolution above quoted, he respectfully appeals against the said resolution to the Sheriff of the county of Lanark, and craves that the said resolution may be recalled. The appellant also craves expenses. In respect whereof. N.B. — As to service, vide s. 169, note h. AND BANKRUPTCY. 465 No. CII. Note of Appeal from Sheriff to Court of Session. (Vide Act 1856, s. 170.) (Copy deliverance appealed against.) [Date. Unto the Eight Honourable the Lords of Council and Session, note of appeal for A. B., merchant in Glasgow. That in the process of sequestration of the estates of C. D., merchant in Glasgow, under the " Bankruptcy (Scotland) Act 1856," and Acts explaining and amending the same, presently depending in the Sheriff Court of Lanarkshire, at Glasgow, the Sheriff- Substitute (Henry Glassford BeU, Esquire) was, of this Nov. 1, date, pleased to pronounce the deliverance above copied, which 1^^^- the appellant respectfully brings under the review of your Lord- ships, in terms of s. 170 of the Statute first above mentioned. May it therefore please your Lordships to recall the deliver- ance complained of, find the appellant entitled to the ex- penses of process, both in your Lordships' Court and in the Sheriff Court, and do otherwise as to your Lordships shall seem proper. According to justice. No. cm. Petition for Warrant to open Post Letters. (Vide Act 1856, s. 179.) Unto the Honourable the Sheriff of the county of Lanark. [Date.] A. B,, accountant in Glasgow, trustee on the sequestrated estates of D. E., merchant in Glasgow, v. D. E., above designed. The petitioner, A. B., Humbly showeth, — That, on the day of , the whole estates, wherever situated, of the said D. E., were sequestrated by the Lord Ordinary officiating on the Bills [or by your Lordship], by virtue of the " Bankruptcy (Scotland) Act 1856," and Acts explaining and amending the same. That the petitioner was elected trustee in said sequestration at the meeting of creditors held on the day of , and his election was thereafter duly declared and confirmed, as shown by the act and warrant herewith produced. 2g 466 FORMS IN INSOLVENCY That, since the date of the sequestration, the bankrupt has left this country, and gone to the United States of America, or else- where abroad, and that without any notice to, or permission from, the petitioner ; and, farther, that the bankrupt has not attended the diet fixed for his examination by your Lordship's warrant. That, in these circumstances, the petitioner considers it proper to secure all letters coming through the post-office addressed to the bankrupt, in order that the petitioner may, if possible, get some information of the current transactions of the bankrupt, and therefore he humbly prays that it May please your Lordship to order that, for a period not ex- ceeding three months from the date of the order, all letters addressed to D. E., the bankrupt, shall be delivered by the Postmaster-General, or the officers acting under him, to the Sheriff Clerk or the petitioner, to be opened in pre- sence of your Lordship, after written notice to the bank- rupt to attend, if within Scotland ; and in case the letters shall relate, in whole or in part, to the estate, that they be placed in such custody as your Lordship may direct. All in terms of s. 179 of the Statute first above mentioned. According to justice. Deliverance thereon. Glasgow, 18 . — Having considered the foregoing petition, grants warrant to Her Majesty's Postmaster-General or other officers acting under him, to deliver to the petitioner any letters addressed to the bankrupt, D. E., which may now be in the post-office of Glasgow, or which may arrive there at any time within three months from this date, to be opened in presence of the Sheriff', after written notice to the bankrupt to attend, if within Scotland, all as craved. No. CIV. Vidivius of the ordinary steps of Procedure in a Sequestration. Jan. 1 . Petition presented, and sequestration awarded. „ 3. Abbreviate of petition and deliverance presented or transmitted to keeper of Register of Inhibitions. ,, 4. Notices inserted in Edinburgh and London Gazettes. „ 11. State of affairs made up by bankrupt, and produced at first meeting. ,, „ Meeting of creditors for election of trustee and com- missioners. AND BANKRUPTCY. 467 Jan. 11. Proceedings reported, and election declared. „ 12. Bond of caution for trustee lodged. ,, „ Election of trustee confirmed ; act and warrant issued, and copy thereof transmitted to Accountant in Bank- ruptcy. ,, 13. Abbreviate of adjudication lodged by trustee. „ „ Trustee takes possession, and makes up inventory, and transmits same to accountant ; also proceeds in the general execution of his duties. ,, „ Petition presented for bankrupt's examination, and deliverance granted. ,, 15. Notice inserted in ' Edinburgh Gazette ' of diet for examination, and of second general meeting of cre- ditors. „ 21. Examination of bankrupt. „ 27. Trustee prepares report to next meeting of creditors. ,, 29. Second general meeting of creditors. May 1. Last day for lodging claims for first dividend. „ „ Trustee's states and accounts made up. ,, 3. Same examined and audited by commissioners. „ 4. Trustee adjudicates on claims. „ 15. Gazette notice, letters intimating first dividend. June 30. Scheme of division made up by trustee. July 2. First dividend paid. ,, „ Gazette notice, and intimation by letters of trustee's application for discharge. „ 24. Meeting of creditors to consider as to same. „ 25. Sederunt-book transmitted to accountant. „ 26. Unclaimed dividends directed to be deposited in bank. „ 27. Unclaimed dividends deposited. „ „ Petition for discharge, and deliverance thereon. LIST OF CASES CITED. A. V. B., 17th November 1837, A. B., 21st November 1829, A. B., IStli January 1835, A. B., 16tli July 1840, . A. B., 20tli November 1858, A. V. B., 14tlL December 1847, A. B., 10th June 1837, A. B., 19th February 1833, A. B., 29th June 1836, A. B., 21st December 1855, A. B., 4th June 1858, . Abercorn, Marquis of, 16th December 1835,- Aberdeen Bank, 3d December 1859, Accountant in Bankruptcy, 8th June 1859, Adam, 24th December 1842, Adam, 17th January 1845, Adam, 29th June 1847, Adoock, 9th December 1843, Aitken, 6th June 1809, Aitken, 14th February 1846, Aitken, 10th June 1848, Aitken, 28th February 1852, Aitken, 8th July 1845, Alexander, 14th January 1845, Alexander, 15th July 1862, Allan, 1st February 1823, AUan, 28th November 1840, Allan, 6th June 1861, . Allan, 27th February 1841, Allan, 28th November 1835, Anderson, 2d March 1813, Andei-son, 9th July 1847, Anderson, 20th Februaiy 1849, Anderson, 7th July 1847, Anderson, 13th June 1852, Anderson, 25th May 1811, PAQE 2, 181 101 234 245 246 262 264, 266 268 268 275 283 24,117 335 330 319 312 71 305, 306 276 249 71, 257 220, 228, 251 312 236 332 71 222, 239 247 265 296 22 71, 250, 251 195, 200 229, 231, 249, 250 251 255 470 LIST OF CASES CITED. Anderson, 12th December 1827, Annan, 9th March 1848, Anon, 1 Chit. 562, Anon, Loff. 274, Argyle, Duke of, 4th May 1825, Amot, 11th July 1834, Arrol, 24th February 1826, Ashley, 25th February 1845, Atkinson, 22d February 1833, Aytoun, 28th May 1824, Bailie, 22d December 1837, Bailie, 13th June 1822, Bailie, 17th May 1833, BaQlie, 14th February 1835, BailUe, 15th November 1845, and April 1848, Baillie, 23d March 1837, Baird, 23d May 1818, . Bald, 11th February 1859, Balderston, 20th February 1841 Balfour, 20th May 1817, Balfour, 20th February 1841, Bauuatyue, 10th February 1810, Bank of Scotland, 2d July 1831, Barbour, 30th May 1824, Barbour, 25th January 1831, . Barbour, 19th November 1835, Barclay, 19th November 1783, Barrows, 25th May 1852, Barstow, 11th March 1856, Barstow, 16th December 1843, Barstow, 15th July 1857, Barstow, 21st February 1849, . Barton, 10th March 1831, Beadie, 21st Jime 1850, Bean, 1st August 1760, Begbie, 22d December 1838, . Belch, 10th June 1806, Bell and Gow, 29th November 1862, Bell, 17th June 1834^ . Bell, 9th June 1854, . Bell, 17th December 1842, Bell, 3d December 1831, Bellis, 3d December 1831, Berrie, 12th February 1830, . Berry, 1st February 1825, and 25th April 1826, Bett, 27th June 1828, . Beveridge, 17th January 1829, Biggar, 19th November 1846, Bisset, 20th July 1841, Black, 15th December 1859, Black, 29th June 1825, PAGE 263 316 230 230 15 314 16, 17, 18, 326 220 313 271, 287 316 126, 275 242 275 267, 277, 338 15, 316 317 192, 195 336 116 223 327 298 186, 187 21 307 184, 217 56 300 295 219 285 271 117 185 224 284 335 22, 25 242 268 300 219 127, 275 220, 226 184 297 268 265 319 220 LIST OF CASES CITED. 471 Black, 15th December 1814, Black, 29tli February 1840, Blackwood, 18tb January 1749, Blackburn, 22d February 1810, Blaikie, 21st January 1809, Blair, 3d June 1846, . Blair, 20th February 1844, Blincow's Trustee, 3d December 1828, 12th Jime 1829, 22d 1831, 18th March 1830, and 25th July 1834, Blyth, 8th July 1825, . Boaz, 28th February 1824, Boaz, 3d December 1829, Bonar, 9th March 1841, Borthwick, 13th November 1832, Borth-mck, 16th July 1844, . Borthwick, 19th Jvme 1838, . BosweU, 15th January 1841, Bow, 1st June 1811, Brandon, 9th July 1862, Brandon, 9th January 1861, Breadalbane, Earl of, 16th January 1824, Brook, 8th March 1852, Brock, 29th November 1822, 5th March 1830, and 1831, Brodie, 21st November 1749, . Bromley, 1 Chit. 562, . Brough V. Spankie, 5th June 1793, Broughton, 17th December 1814, Broughton, 2d July 1812, Brown, 1st June 1830, Brown, 7th March 1845, Brown, 1st February 1849, Brown, 14th February 1845, Brown, 23d December 1848, Brown, 5th July 1859, Brown, July 1820, Brown, 11th February 1809, Brown, 17th June 1846, Brown, 7th March 1828, Brown, 10th July 1817, Brownlee, 3d February 1831, Bruce, 27th January 1832, Bruce, 7th July 1825, . Bryce, 20th February 1818, Buccleugh, December 1728, Buchan, Earl of, 11th July 1835, Buchanan, 8th December 1829, Buchanan, 15th June 1827, Buchanan, 25th January 1733, Buchanan, 6th February 1849, Burgh, 1st January 1717, Burnet, 14th June 1853, January 23d September 90, 101, 313, PAGK 188 16, 311 181 186 214 230 307 71, 187 264 228 304 231 21 260 184 261 256 239 356 23 298 99 181 230 185 91 101 15,17 231 215, 261 232 300 306 312 313 320 317 320 318 187 304, 327 317 178 22 320 24 186 226 187 283 314, 185, 472 LIST OF CASES CITED. Caddbll, Sth July 1819, Caird, 3d December 1857, CaUon, ISth November 1851, Campbell, 20tb June 1840, Campbell, 29tli June 1825, Campbell, 27th May 1853, Campbell, 24th. November 1855, Campbell, 3d July 1829, Campbell, 13th January 1835, Campbell and Beck, 11th June 1862, Campbell, 11th March 1856, . Campbell, 10th August 1780, CampbeU, 3d March 1830, Campbell, 9th February 1854, Campbell, 14th February 1855, Carron Co., 4th July 1775, Carsewell, 21st June 1832, Chahners's Trustees, 12th May 1860, Chalmers, 19th January 1726, Charles, 12th December 1835, Cheyne, 26th November 1828, Chishobn, 8th March 1825, Chishohn, 2d December 1856, Christie, 25th January 1827, Christie, 27th Jime 1835, Christie, 19th December 1835, Clark and Eoss, 20th May 1813, Clark, 18th November 1847, Clark, 12th January 1847, Clark, 8th July 1848, . Clark, 4th March 1843, Cleghom, 16th June 1827, Clerk, 30th June 1675, Cleugh, 18th January 1843, Cole, 17th March 1860, CoIviUe, 21st December 1850, Cook, 2d June 1831, . Cooper, 15th July 1854, Cormack, 8th July 1829, Cormack, 23d November 1832, Corsan, 25th June 1751, Corsan, 24th November 1827, Coulter, 10th June 1823, Cowper, lOth March 1847, Cranstoun, 2d February 1830, Crawford, 24th November 1827, Crawford's Trustees, 25th May 1827, Crawford, 8th December 1821, Crawford, D. 11832, Creighton, 6th February 1838, Criohtou, 25th June 1833, 186, PAGE 272 181 15, 17, 18 265 264 231, 237, 238, 239 226 21 300 23, 236 . 70, 243, 314 185 226 318 323 215 25 251 187 322 234 26 40 279 291 292, 293 58 265 265 283 318 25 179 304 225 266 242 244 97 264 179 264, 266 23 71 185 224 296 239 301 268 276, 277 237, LIST OF OASES CITED. 473 Oruickshauk, 15th February 1849, CuUen, 16th July 1842, Cult's Creditors, 5th August 1783, Cuthn, 21st November 1818, . Dalrtmple, 12th June 1823, . Darling, 20th December 1851, DarUng, 17th January 1852, Davidson, 14th December 1826, Dawson, 4th February 1840, . Dick, 12th November 1845, Dickson, 3d December 1751, Dickson, 15th January 1839, Dickson, 27th May 1828, Dixon, 3d December 1828, Dobie, 22d November 1854, Dods, 3d July 1847, Doe, 1 Chit. 228, Douglas, 15th June 1832, Douglas, 17th December 1842, Douglas, 29th February 1848, Drummoud, 29th January 1850, Drummond, 14th November 1856, Duncan, 13th December 1826, Duncan, 3d June 1834, Duncan, 8th December 1803, Dundas, 19th January 1822, Dundas, 4th December 1857, Dundas, 2d June 1808, Dunlop, 5th July 1803, Dunsmuir, 25th November 1801, Dyce, 19th December 1846, Dyce, 28th May 1847, Dyce, 11th March 1847, Dyce, 2d June 1847, Eadie, 3d February 1829, Edmond, 1st June 1853, Edmond, 16th November 1860, Edmond, 16th November 1855 and 26th February 1858, Elder, 12th June 1850, Elliot, 10th November 1749, Elliot, 7th March 1768, Esson, 14th February 1842, Ewing, 11th January 1860, Ewing, 8th July 1824 and 28th May 1826, Ewing, 29th June 1860, Faielie, 18th December 1821, Fairlie's Trustees, 6th March 1830 and 1st March 1833, Fairman, 5th December 1840, .... 102, 71, 229, 249, PAUli 300 229, 249, 301 179 97, 116 243 220 337 116, 117 186 16, 18 215 235 319 184, 185 3,6 260 230 20, 186 273 302 188, 317 212 268 249 101 287, 327 97, 116 187 322 264 250, 260 249 257 352 3, 177, . 237, 260, 22, 268 178, 217 23, 24 96 248, 257 181 187 119, 224 335, 336 271 292 24 57 201 474 LIST OF CASES CITED. Farqviliarson, 15th May 1832, Ferguson, 1771, Ferguson, 16th November 1836, Ferrier, 2 B. C. 218, n. 2, Ferrier, 8th July 1835, Fife, 17th Febraary 1844, Findlay, 10th July 1846, Finlay, 21st January 1767, Finlay, 15th May 1832, Fisken, 7th June 1845, Forbes, 26th January 1751, Forbes, 2d July 1851, . Ford, 18th June 1844, . Forrest, 23d December 1848, Forrester, 17th February 1831, Forrester's Creditors, 2d June 1798, Foulds, 12th July 1851, Foulds, 22d December 1843, Franklin, 5th December 1840, Freeland, 11th June 1823, Fulton, 15th February 1831, Fulton, 10th March 1838, Fulton, 9th July 1816, Furlong, 1st February 1809, Galbraith, 6th December 1856, Gallie, 24th January 1840, Galloway, 19th December 1849, Galloway, 20th January 1845, Garden, 18th July 1848, Garden, 15th June 1860, Garden, 3d July 1823, . Gardner, 24th June 1862, Gascoyne, 10th December 1847, Gasooyne, 19th January 1848, Gavin, 10th June 1843, Geddes, 4th June 1824, Geddes, 5th July 1836, GeUatly, 6th February 1688, Gemmel, 20th December 1853, Gibb, 12th May 1838, . Gibson, 7th December 1824, Gibson, 9th July 1833, . Gibson, 1st July 1825, . Gibson, 17th December 1853, Gibson, 25th May 1833, GilMan, 26th November 1836, Girdwood, 24th November 1821, Givan, 2d December 1837, Glass, 12th May 1825, . Glen, 19th January 1849, 228, 229, 251, 72, 251, 257, 228, PARE 261 215 254, 317 185 278 247 219 215 322 293 186 304, 337 306 250, 258 266 272 258, 267 267 318 18 23 190 220 71, 247, 249 192 270 248 201 247 254 277 238 250 264 195 101 220 182 322 304 22 185 228 253, 257 269 322 306 249, 257 16 228 227, LIST OF CASES CITED. 475 Glen, 24th November 1843, Globe Insurance Company, 16th February 1849, Globe Insurance Company, 28th February 1839, Goddard, December 1804, Goodwin, 26th November 1803, Gordon, 19th January 1828, Gordon, 12th January 1842, Gordon, 5th February 1824, Gordon's Executors, 13th July 1825, Gordon, 23d December 1679, Gordon, 19th February 1724, Gordon, 14th June 1851, Gosling u Veley, Queen's Bench (Exchq. Cham. p. 328, 1850, Gourlay, 15th June 1827, Gow, 14th November 1862, Gowan, 19th February 1835, Graham, 9th December 1828, Graham, 9th July 1824, Graham, 20th February 1850, Grant, 1st December ] 859, Grant, 6th February 1835, Grant, 5th June 1747, . Grant, 10th November 1748, Grant, 21st December 1811, Grant, 9th November 1748, Grassick, 1st February 1860, Gray, 29th June 1821, . Gray, 2d February 1844, Gray, 6th February 1850, Gray, 7th March 1812, . GreenhiU, 17th January 1824, Greig, 9th June 1853, . Grimshaw, 4th June 1842, Gmm, 12th December 1850, Guthrie, 21st May 1845, Haines, 31st January 1862, Hain, 13th December 1853, Hair, 9th March 1830, . Halley, 23d May 1861, Hallowell, 17th February 1843, Hamilton, 29th May 1828, Hamilton, 6th February 1841, Hamilton, 5th June 1852, Hamilton, 2lBt June 1834, Hamilton, 15th July 1670, Hamilton, 9th February 1743, Hamilton, 23d November 1830, Handyside, 26th June 1811, Harvie, 2d July 1833, . Hay, 5th February 1850, ) Eep., vol. 12, PAGE 260 21, 22, 24 298 71 335 319 90 101 116 179 181 219, 254 126, 320 127, 275 337 256 15 116 127, 275 336 20, 181 20 178 311 179 196, 201 277 247 277 311 227 259 316 272 313 237, 356 72, 221 226, 229, 249 319 57, 235 267 261 190 21 179 186 304 312 116 71, 257, 260, 336 476 LIST OF CASES CITED. 18th March 1858, Henderson, 19th July 1849, . Hennecy, 1st March 1851, Henry, 24th January 1832, Hepburn, 11th Jiily 1816, Hepburn, 14th Februaiy 1842, Heriot, 27th June 1766, Hodge, 4th December 1855, Hogan, 19th February 1853, . Holliday, 11th July 1848, HoUmgworth, 2l3t January 1813, Holt, 29th May 1857, . Hooper, 20th JxUy 1850, Home, 12th February 1847, . Horsfall, 24th Nov. 1826, Hosaack, 16th December 1841, Houston, 25th November 1841 and 20th May How, 14th December 1833, Howden's Trustee, 10th February 1835, Hunter, 14th January 1812, Hunter, 20th December 1822, Hunter, 31st January 1835, Imbie, 16th July 1842, Inglis, 26th February 1829, Inglis, 13th July 1859, Inglis V. Mansfield, 28th June 1833 and 10th Inglis, 23d May 1811, . Inglis, 21st March 1843, Innes, 18th December 1828, Ireland, 20th December 1834, Ironside, 26th March 1841, Jackson, 22d November 1862, Jardine, 18th July 1848, Jeffray, 5th July 1821 and 11th June 1824, Jeffiray, 10th February 1831, Jeffray, 24th May 1825, Jeffray, 13th June 1828, Jeffrey, 15th May 1835, Joel, 10th June 1859, . Joel, 23d November 1859, Joel, 11th January 1860, Johnston, 20th February 1823, Johnston's Trustee, 4th January 1738, Johnston, 23d January 1823, . Johnston, 29th January 1751, . Johnston, 18th July 1840, Johnston, 18th February 1826, Jones, 23d February 1838, Jopp, 22d December 1844, 1842, April 1835, 252, PAGE 195 270, 271, 304, 324, 335 197 334 187 318 21 273, 335 216 302, 304 14 201 58 179, 217 15,17 193 306, 308 321 256 266 284 316 229 99 116, 273 185, 186 311 326 24 320 313 116, 117, 317 229 117 117 178 265 101 219, 238 226, 238 337 15, 16, 17 23 90, 101 187 249 278 195 236 LIST OF CASES CITED. 477 Keillah, 14th Febmaiy 1S42, Kellie, Earl of, 28th February 1821, Kemp, 28th February 1832, Kennedy, 10th March 1838, . Ker, Sth February 1845, Ker, 2Sth January 1830, Kerr's Trustees, 15th December 1832, Kerr, 21st December 1827, Kerr, 22d February 1849, Kerr, 14th February 1828, Kerr, 20th February 1829 and 9th December 1830, Kerr, 12th June 1852 and Jime 1854, Kerr, 31st May 1845, . Kerr, 14th November 1828, Kerr, 16th December 1847, Kidd, 12th February 1830, Kilpatrick, 9th June 1S25, Kinnear, 14th November 1849, King, 25th May 1858, . King, 24th January 1828, Kirkaldy, Sth December 1841, Kirkland, 9th March 1838, Kirkland, 17th May 1831 and 25th March 1833, Laidlaw, 27th January 1844, Laing, 18th January 1832, Lang, 16th July 1850, . Larken, 1st July 1824, . Latta, 4th July 1862, . Latta, 18th July 1857, . Lauder, 15th July 1859, Lauderdale, Earl of, 9th March 1830, Lawrie, 7th June 1848, Lea, 16th January 1828, Learmonth, 18th July 1845, Learmonth, 21st January 1858, Learmonth, 13th February 1858, Leek, 7th July 1855, . Lindsay, 10th July 1840, Lindsay, 9th December 1841 Lindsay, 20th January 1844, Listen, 15th July 1853, Littlejohn, 13th December 1855, Livingston, 6th July 1811, Lizars, 20th June 1835, Lockhart, 12th July 1849, Lockie, 14th February 1837, Love, 4th June 1846, . Low, 10th July 1851, . Low, 20th December 1836, Lowe, 14th February 1835, 71, 97, PACK 315, 317 22, 235 116, 313 190 302 188 21 23 302, 334 326 221, 337 227 243 266 283 237 16 250 234 249 23, 261 86, 102, 117 116, 117 248, 249 178, 181 226 21 314 325 23 22 260, 267 21, 264 71 234, 322 279 221 90, 98, 101 97 316 252 97 311 228 250, 267 20, 235 243 87, 250, 251, 257 277 264 478 LIST OF CASES CITED. PAGE Lusk, 29th June 1843, 247, 262 Lyell, lltli Marcli 1823, • 20 Mabbn, 3d June 1837, . . 117, 278, 287 Mabon, 16th March 1858, 212 Mack, 25th November 1814, . 16, 17, 18 Malcolm, 26th June 1828, 224 Man, 25th July 1702, . 184, 217 Mann, Ist July 1857, . 265, 267 Mansfield, 15th March 1835, . 279 Mansfield, 30th November 1843, . 22, 24 Mansfield, 13th February 1833, 17 7, 178, 186, 217 Manson, 16th July 1771, 185 Manson, 27th November 1844, . 191 Marjoribanks, 30th November 1831, . 316 Mamock, 4th March 1857, 200 Marshall, 2d March 1860, 234, 235, 324 Marshall, 11th December 1834, 215 Martin, 8th December 1836, . . 20, 22 Martin, 18th November 1857, . 275 Mathie, 28th May 1822, 284, 287 Maxwell, 14th February 1807, . 320 Megget, 10th July 1830, 322 Meiu, 15th February 1855, 293 Mein, 19th January 1830, 268 Mein, 6th March 1824, 71, 261 Mellice, 22d June 1815, 316 Melvil, D. 11853, 301 Melville, 1st June 1842, 97 Menzies, 5th June 1851, 72, 250, 352 Mercer, 11th December 1823, . . 23, 24 Miller, 5th July 1836 294 MiUer's Trustee, 19th March 1862, 11, 185 Miller, 11th December 1822 and 12th June 185 7, 186 Miner, 27th June 1848, 229, 249 MiUer, 13th June 1840, 231 Miller, 18th March 1858, 264, 267 Miller, 17th July 1846, .... 268 Miller, 27th November 1862, . 273, 274 Miln, 19th Jime 1845, .... 312, 313 Milne, 13th Jtme 1850, 235 Mitchell, 23d January 1834, . 116 Mitchell, 26th June 1834, 186 MitcheE, 28th January 1860, . 265 Mitchell, 2d December 1830, . 271 Monteath's Trustee, 12th December 1794, 186, 187 Montgomerie, 20th December 1841, 14 Montgomery, 17th JiJy 1845, . 220 More, 22d January 1800, 186 Mories, 24th November 1843, . 249 Morris, 21st January 1843, 306 LIST OF CASES CITED. 479 Morrison, 20th JiUy 1854, Momson, 28th January 1832, Morrison, 16th February 1849, MouseweU's Creditors, 6th January 1677, Mowbrary, 18th May 1793, Mowbray, 13th November 1821, Muir, 2d December 1825, Muir, 30th November 1839, Muir, 14th February 1843, Muir, 1st July 1828, . Munro, 21st June 1851, Murray, 22d Jime 1821, Murray, 15th November 1856, . Murray, 3d March 1836, Myles, 2d December 1851, M'Arthur, 20th Jime 1844, M'Clelland, 27th February 1857, M'CleUand, 19th June 1849, . M'Clymont, 14th February 1827, M'Cowan, 6th July 1852 and 10th March 1853, M'Cowan, 29th June 1852, M'Cowan, 21st June 1852, M'Cowan, 14th December 1852, M'Cubbin, 28th June 1850, M'Cubbin, 9th July 1856, M 'Donald, 3d July 1852, M 'Donald, 13th June 1840, M 'Donald, 27th February 1840, M 'Donald, 9th March 1861, M'DougaU, 5th June 1801, M'Ewan, 7th December 1842, M'Ewan, 30th May 1828, M'Farlane, 6th March 1857, M'Farlane, 29th January 1848, M'Farlane, 12th December 1823, M'Farlane, 11th June 1852, M'Fee, June 1809, M'Funn, 11th July 1811, M'Gavin, 11th February 1854^ M 'Gavin, 10th June 1843, M'Gowan, 24th February 1826, M'Gowan, 13th December 1808, M'Gregor, 14th December 1852, M'Intosh, 29th June 1826, M'Intosh, 29th February 1828, M'Intosh, 11th July 1846, M'KeU, 30th July 1766, M'KeUar, 12th July 1861, M'KeUar, 13th June 1860, M'KeUar's Creditors, 1st March 1791, M'Kenzie, 9th July 1854, 227, PAQE 11 254 260, 319 179 247 265 18 245 269 270 274 227, 249, 264 230, 251, 273, 274 311 288 101 261 262 25 36, 177, 180, 182, 217 180 180 181 229, 230, 249, 250, 267 336 195 235 245 262 261 . 71, 257 . 3, 6 332 265, 268, 352 . 23, 25 201 317 311 221 195 178 264 195 58 284 313 20 273 205 216, 218 21, 22, 24 480 LIST OF CASES CITED. M'Kenzie, 26th June 1861, M'Kersy, Ist March 1823, M'Kersy, 13th July 1841, M'Kersy, 20th June 1850, M'Kersy, 7th March 1829, Mackintosh, 4th July 1849, M'Lachlan, 29th June 1824, M'Lachlan, 15th June 1826 and 5th Jmie 1829, M'LacMan, 23d November 1830, M'Laggan, 17th July 1851, M'Lean, 29th November 1825, . M'Lean, 10th June 1824, M'Lean's Trustee, 21st November 1850, M'Leish, 23d February 1822, . M'Leod, 1st February 1851, M'Master, 16th December 1830, M'Math, 7th March 1791, M'MUlan, 4th March 1821, M'Minn, 10th July 1804, M'Nab, 13th December 1851, . M'NeUan, 5th February 1856, . M'Kostie, 2d March 1850, M'Taggart's Representatives, 25th January 1834 and 1835, M'Taggart, 1st February 1809, M'Tavish, 13th November 1824, M'Vioar, 18th February 1762, M 'Vicar, 28th November 1829, Napier, 12th February 1670, . Napier, 3d December 1850, Neil, 5th December 1833, Neilson, 2d February 1843, . . Newal's Trustee, 13th June 1840, NicoU, 20th December 1855, . Nicol, 6th February 1851, Nisbet, 17th June 1856, OoBLEFOBD, 19th February 1856, Ogilvie, 6th February 1810, Ord, 3d July 1846, Orr, 28th February 1843, PAOAi^, 17th January 1823, Parker, 12th June 1841, Parlane, 28th June 1825, Paterson, 2d December 1813, Paterson, 2d June 1847, Paterson, 4th June 1824, Paterson, 30th June 1846, Patterson, 26th June 1811, 16th April 21 PAGE 234 284 268 57, 234 229, 257 251 178 90, 292 280 271 298 226 116 266 257, 261 26 185 21 311 238 322, 337 248 264, 268 289 265 22, 24 312 15, 179 323 16, 17 64 312 235 251 285, 286 250 191 263 335 348 24 328 272, 287 315 258 25 227 266 LIST OF CASES CITED. 481 Pattison, 3d December 1828, ..... PAOP. 185 Paul, 19tli December 1820, .... . If ), 17, 317 Paul, 2d February 1826, . . 91, 101, 126, 127, 275 Paul, 13th February 1834 and 14tli June 1S34-, 222, 228, 229, 231, 249 Paul, 21st February 1855, ..... 283, 285 Peek, 16th February 1S49, ..... 220 Pender, 17th November 1831, ..... 5 '1, 22, 25 Pentland, 3d July 1827, ..... 310 Ferryman, 17th February 1852, .... 229, 237 Pilling, 30th June 1857, ..... 302, 305, 336 Playfair, 24th December 1788, .....' 278 Pollock's Creditors, 21st January 1669, 217 PoUock, 3d December 1844, ..... 283 Poynter, 9th March 1839, . . . . 248 Pardon, 10th December 1853, ..... 335 QuBENAN, 11th February 1860, 205 RAiLTOif, 8th July 1835, . . . . 226, 264 Eamsay, 11th Jime 1829, 186 Eeid, 21st May 1836, ... . . 265 Reid, 10th July 1828, . . ... 301 Eeid, 7th March 1823, . .... 313 Eeid, 15th February 1838, . ... 322 Kemington, 10th December 1829, .... 180 P^nny, 1st July 1841, ...... 91 Kenny, 8th February 1847, ..... 91, 101 Khind, 5th December 1846, ..... 71 Richardson, 24th June 1835, ..... 53, 117 Richmond, 13th June 1850, ..... 265 Richmond, 26th January 1854^ ..... 2 Richmond, 26th June 1805, ..... 187 Richmond, 14th January 1789, .... 215 Richmond, 11th February 1854, .... 239, 271, 330 Riddoch, 9th March 1639, ..... 179 Ridpath, 20th July 1844, 283 Ritchie, 27th November 1821, ..... 188 Ritchie, 17th Jidy 1856, 245 R«bb, December 1806, ...... 71 Robb, 28th May 1830, 9th July 1830, and 3d October 1831, . 221, 222 Roberts, 28th July 1842, 100 Robertson's Trustee, 9th February 1842, . . . . 317 Robertson, 4th May 1820, ...... 16 Robertson, 12th December 1830, . . . . . 313 Robertson, 13th July 1837, . . . . K i, 17, 18 Robertson's Trustee, 16th June 1827, . . . . . 284 Robertson, 4th December 1823, . . . . . 25 Robertson. 20th February 1857, . . . . . 277 Robertson, 19th November 1833, . . . . . 57 Robertson, 14th July 1857, ...... 245 Robertson, 3d July 1823, . . . ... 261 2h 482 LIST OF CASES CITED. Robertson, 23d June 1836, Robertson, 13tli December 1842, Robinson, Ap. Ca. 131, Robison, 23d November 1827, . Roddan, 29th June 1815, Roger, 10th June, 1850, Roseberry, 1st July 1823, Ross, 15th Jane 1830, Ross, 27th February 1852, Ross, 23d December 1826, Rough's Trustees, 23d January 1857, Royal Bank, 24th February 1709, Roy, 18th June 1831, . Russell, 3d December 1823, 3d July 1827, 4th April 1831, Samson, 18th July 1851, Samson, 29th June 1849, Sandeman, 4th July 1835, Sanders, 8th February 1823, Saunders, 10th March 1827, Sawers, 17th December 1858, Schuurmans, 9th July 1828, Scott, 2d December 1837, Scott, 12th June 1822, . Scott, 21st December 1826, Scott, 23d June 1847, . Scott, 18th February 1848, Scott, 14th February 1834, Scott, 7th December 1839, Scott, 18th January 1855, Scottish Provident Assurance Company, 27th January 1859, Scougal, 7th February 1828, Scudamore, 3d June 1797, Semple, 21st January 1841, Shand and Company, 25th November 1848; Sharp, 19th January 1839, Shaw, 17th November 1747, . Sheriflf, 23d November 1809, . Sheriff, 25th May 1811, ShiUeto, 30th March 1862, Shoemakers of Canongate, 5th June 1797, Shuurmans, 7th March 1829, . Slade, 23d May 1806, . Smith, 10th July 1830, and 4th February 1831 Smith, 19th July 1728, . Smith, 10th February 1826, Smith, 7th February 1857, Smith, 22d November 1821, Smith, 6th February 1849, Smith, 10th January 1828, Smith, 2d October 1820, 247, PAGE 317 334 268 264, 265 186 236 3 178 262, 288 91, 291 296 181 316 S9 251, 260, 322 317 269 272 317 284 2 323 306 269 248 237, 243 16, 17, 18 213, 214 214, 215 314, 316 187 259 235 317 178 184 322 338 193 216 306 317 116 185 213 234 255 257 263 284 LIST OF CASES CITED. 483 Smith, 8th July 1803, . Smith, 15th December 1827, . Smith, 13th Jime 1828, Smith, 14th November 1812, . Smith, 16th May 1860, . Smith, 10th July 1848, . Smith, 7th December 1860, Smyth, 23d December 1843, . Snodgrass, 13th November 1744, Suodgrass, 16th January 1846, . SomerNdlle, 10th February 1859, Spears, 4th December 1838, Spedding, 9th August 1785, Speid, 10th Jime 1850, . Speir, 15th June 1825, 22d May 1826, and 30th May Spence, 6th December 1692, Spence, 13th December 1832, . Sprott, 5th July 1828, . Stanfield, 19th January 1676, . Stead, 30th January 1835, Steel, 17th January 1852, Steel, 14th November 1855, . Stein's Creditors, 1st March 1791, Stephen, 31st May 1860, Stephen, 19th November 1853, . Stewart, 10th July 1851, Stewart, 4th December 1832, . Stewart, 21st June 1836, Stirling Bank, 1st March and 27th May 1803, Stoppel, 15th November 1850, . Strang, 12th May 1821, Street, 12th February 1672, . Struthers, 7th March 1861, Stubbs, 24th June 1829, Summers, 29th January 1839, . Sutherland, 11th February 1843, Swan, 15th January 1859, Swanson, 5th March 1836, Swanson, 9th July 1836, Sym, 6th July 1758, Symers, 1 B. & P. 105, Tastet, 1st December 1825, Taylor, 8th March 1855, Taylor, 21st January 1854, Taylor, February 1819, Taylor v. Drummond, 11th January 1848, Taylor, Uth March 1848, Taylor, 26th May 1840, Taylor, 1st February and 7th March 1840, Thom, 11th March 1857, 1827, 277, 281, 185, 220, PAGE 289 311 313 320 323 335 356 285 20 248 282, 335 324 215 235 185 181 277 277 179 116 235, 236 316 187 58 318 101, 305 186, 187 316 322 3 186 3 267 24 192 221 116 271 271 185, 186 230 306 186, 187 195 214 228, 252 229 241 301 234 484 LIST OF CASES CITED. Thomson, 20tli February 1855, Thomson, 24th February 1827, Thomson, 10th July 1855, Thomson, 28th February 1806, Thomson, 2d July 1859, Thomson, 31st May 1834, Threshie, 30th May 1815, Tod, 16th December 1851, Tolmie, 26th November 1853, Torbit, 23d February 1849, Tulloch, 3d February 1847, Turnbull, 1st March 1828, Turnbull, 27th Jime 1850, Turner, 8th June 1822, . Tweedie, 7th January 1715, Tweedie, 22d January 1858, Ueb, 28th May] 857, . Ure, 18th November 1829, XJrquhart, 22d May 1855, Veitch, 28th November 1821, Walker, 7th December 1861, Walker, 3d December 1835, Walker, 7th February 1835, Walker, 14th May 1835, Walker, 17th December 1853, Wallace, 27th May 1824, Wallace, 8th January 1821, Watson, 22d February 1848, Watson, 1 M. & Scott, 437, Watson, 27th June 1848, Watson, 5th February 1724, Watson, 29th November 1823 and 11th Watson, 1st March 1826, Watson, 24th February 1769, Watt, 20th February 1846, Weir, 20th June 1848, . Welsh, 15th June 1826, Westland, 18th November 1840, Whitehead, 29th November 1671, White, 2d March 1843, White, 8th June 1843, White, 17th December 1846, . White's Trustee, 13th February 1851 Whyte, 20th March 1817, Wilkie, February 1802, . Williamson, 3d December 1845, Wmison, 11th March 1815, . Wilson, 21st December 1844, . June 1824, 227, PAGE 21 22 71 186 279 304 264 185 244, 246, 247 25, 269 26 249, 259, 260, 264 250 276 181 332 238 339 116, 313 26 273 334 260, 270 64, 302, 316, 322 251 270 307 248 230 260, 337 23 117 186 215 2, 96 235 25 336 179 269 187 229 300 215 227 220 265 248 226, 255, 117, LIST OF CASES CITED. 485 Wilson, 17th May 1822, Wilson, 20tli December 1853, Wilson, 14tli December 1811, Wink, 8tli Marcli 1849, Wixon, 22d June 1849, Wood, 4tli December 1823, AVood, 3 More, 236, Woodside, 15tli July 1847, Wotherspoon, 17th November 1S43, Wright, 7th March 1839, .... Wright, 9th March 1855 and 9th February 1856, Wright, 19th November 1842, Wright, 7th February 1852, .... Wrighte, 20th November 185G and 20th February 1860, Wylie, 24th February 1859, .... Wylhe, 17th December 1835, . YoKK, 5th Jidy 1861, Young, 25th June 1783, 3,6, 248, PACE . 23 178 180 ,186 266 219, 2.")0 258 221) 228 180 2.30 249, 2ri0, 2.-,7 . 20, 186 191 229, 302 285 219 322, 323 327 276 186 INDEX. A Abandonment of estates by trustee, 57, 234 — assumption of same by bankrupt, 57, 234 — abandonment by creditors, 277 — assumption by minority of credi- toi-s, 277. Abbey, see Sanctuary. Abbreviate of sequestration to be recorded, 246 — omission, 246 — abbreviate of trus- tee's confirmation to be recorded, 274 — omission, 274 — also abbreviate of bank- rupt's diseharge, 352. Absconding, a requisite of notour bank- ruptcy, 9, 183 — how proved, 215 — what circumstances amount to absconding, 215. Acceleration of dividends, 309. Accession to trust-deed, vide Trusft-deed. Accountant in Bankruptcy, appointment, 163, 328— qualification, 163, 328— tem- porary appointment in case of illness, &c., 164, 331 — functions of accountant, 164 — his concurrence in a sale of heri- table estate by private bargain, 164, 299 — extract of bankrupt's discharge to be preserved by him, &c., 164, 315 — entry of trustee's discharge, 164, 326 — to direct trustee to consign unclaimed dividends, &c., 164, 327— to keep re- gister of sequestrations, &c., 164, 329 — to preserve annual returns, 165, 329 — to take cognisance of trustee, 165, 330 — to superintend sequestrations, 166, 330 — to report disobedience of trustee, &c., 166, 330 — to give information to Lord Advocate, 166, 331. Accounts necessary to prove debt, 247; vide Vouchers. Accounts of expenses, vide Expenses. Act 1621, copy of, 175— Act J696, copy of, 183— Cessio Act, copy of, 189— Act 1856, copy of, 211- Act 1857, copy of, 351— Act 1860, copy of, 355. Acts of Sederunt to be made for carrying into effect Cessio Act, 197 — under Act 1856, 340. Act of Sederunt 1838, copy of, 197— Act of Sederunt 1839, copy of, 203— Act of Sederunt 1859, copy of, 350. Adjouimment of meetings, 288 — adjourn- ment of first meeting, 263. Adjudger, rights of, in subject of security, 89- right of adjudger in estate gene- rally, 87— in competition with trustee, 98 — not liable for expenses of seques- tration, 301. Adjudication a requisite of notour bank- ruptcy, 9, 214— also an adjudication of bankruptcy in England or Ireland, 9, 214— adjudication not competent after sequestration of estates of deceased debtor, 235 — sequestration is equivalent to adjudication, 77, 295- -adjudication in competition with trustee, 98 — regis- tration of abbreviate of sequestration, equivalent to citation in adjudication/ 246. Adjudication on claims by trustee, vide Trustee. Adjudications, Register of Abbreviates of, 274, 352 — abbreviates to be registered in, 274, 352, 295. Advertisement, vide Notice. Affidavit, vide Oath. Affirmation, vide Oath, Declaration. Agent may make oath of credulity, 230, 231— also make correction upon oath, 2o2 — agents in Court of Session may practice in Sheriff Courts, 196, 338 ; vide Law-agent. Alienations, gratuitous, vide Insolvency. Aliment of illegitimate child, caution for, must be found under cessio, 40 — future aliment not struck at by bankrupt's discharge, 316. Allowance to bankrupt, 274, Alteration of dividends, 310. Ancestor*'s creditors, rights of, in estate generally, 87^in subject of security, 89 ■ — trustee's act and warrant is com- plete dihgence in their favour, 290. Annuities, valuation of, 254 — liability of cautioner, 255. Appeal, see Review. Apprehension of debtor a requisite of no- tour bankruptcy, 9 — proof of same, 215. Arrangement, deed of, 45, vide Deed of arrangement. Arrester, his right in estate generally, 488 INDEX. 87— -Ms right in subject of security, 90. Arrestment a requisite of notour bank- ruptcy, 9 — equalisation of arrestments, 12 — expenses of same, 12 — if on depen- dence to be followed up without undue delay, 12— if within sixty days, prior to sequestration not effectual, 295 — and effects or proceeds to be made furthcom- ing to trustee, 295 — sequestration is equivalent to arrestment and forthcom- ing, 295 — expenses bona fide incurred to be allowed, 296- trustee takes arrested fund subject to a claim of preference in the ranking, 101. Assignation under cessio, 26 — assignation in competition with trustee under se- questration, 99, 100 — assignation of cre- ditor's securities when valued, 255, 259 — assignation to bankrupt of right to challenge preferences, 317. Assignee of debt, after sequestration, can- not vote for trustee, 2()0 — does not re- quire new oath, 260 — assignee of lease in competition with trustee, 99 — as- signee of debt in competition with trus- tee, 100. B Bank, how oath made on behalf of, 231 — moneys of estate to be lodged in bank, 276, 278— bank to accumulate interest, 276 — unclaimed dividends to be lodged in bank, 327 — account of same and of interest to be kept, 327^and to be ac- cumulated, 328. Bankrupt, notour, vide Notour bank- ruptcy. Bankrupt under cessio, vide Cessio. Bankrupt under sequestration, status or -personal rights of, 53 — meaning of word "bankrupt," 213 — effect of seques- tration on person of bankrupt, 53 — effect on domestic relations, 53 — on official relations, 53 — his political status, 53 — electoral privileges, 53— effect on indus- trial relations, 53 — where founded on property, 53 — where not so, 54. , rights of property, 54 — divestiture, 54, 234 — bankrupt has radical right in estate, 234, 324— subsequent acquisitions, bb, 292 — effect of recording abbreviate of sequestration, bb, 246— privilege of tiTis- tee to have bankrupt''s letters seized, 55, 339- -as to money in his possession, 55 — wearing apparel, 55, 286— alimen- tary rights, 55— offices, 58— salaries, bQ — pensions, &c., 56, ,324 — honours and dignities, bQ — copyrights, bQ — leases where creditors excluded, 6Q — aban- doned rights, 57, 234— re-investiture, 57, 315 — surplus of estate, 57, 328. his powers^ 57 — may apply for sequestra- tion, 57, 218— appeal against sequestra- tion where more than one, 57, 224 — apply to Court of Session where Sheriff refuses, b7, 225— oppose sequestration, 57, 235 — may sue on finding caution, 57 — does not find caution where called as defender, 57 — may apply for recall, 58, 236— and apply for sist, 58, 240 — liberation, 58, 244— appeal against refusal, 58, 246 — may call trustee, &c., to account, 58, 279 — uiay apply for recall of warrant of commitment, 58, 235 — may make altera- tions on state of affairs, 58, 286 — can- not grant deeds after sequestration, 58, 297-^may make offer at first meeting, 58, 310— and at subsequent meetings, 59, 314 — may appeal against commis- sioner's audit, 59, 318 — may call trustee to account notwithstanding discharge, 59, 318 — must object tn debts or securi- ties before discharge, 59, 319 — cannot make a second offer without written assent, 59, 319 — may apply for discharge withoiit composition, 59, 320— cannot grant preferences, &c., 59, 325 — his power of appeal, 59, 333 — may apply to Court to compel trustee, &c., to perform duties, 60. ■ , his duties, 60 — to insert Gazette notice, 60, 225 — to send copy of proceedings to Sheriff Clerk, 60, 243 — to have abbre- viate recorded, 60, 246— to make up state of affairs, 60, 275 — to assist trustee, 60, 275 — to undergo examination, 60, 281 — to answer lawl'ul questions, 60, 283 — on oath, 60, 284 — latent partner must dis- close himself, 61, 286 — to take statutory oath, 61, 286— to notify subsequent acquisitions, 61, 292— to grant deeds, 61, 294 ■ , law procedu7-e against him, 61 — imprison- ment for not granting deeds, 61, 275 — warrant to attend examination, 61, 280 — also to apprehend him, 62, 281 — and bring him from Sanctuary, 62, 281— also from England or Ireland, 62, 282 — impri- sonment for refusing to answer, &c., 63, 285— if guilty of fraud, 63, 287— dis- charge may be annulled, 63, 326 — prose- cution by Lord Advocate, 63, 331 — amenable to criminal law, 64 — also all action and diligence, 64 ; vide Dis- charge of bankrupt. Personal protection. Allowance, Examination. Bill Chamber Clerk, 167 — clerks to seques- trations in Court of Session, 167, 243— transmission of certified copy of petition, &c. , 167, 243 — recording of bond for com- position, 315, 319 — extract of discharge on composition, 167, 352- abbreviates issued, 167, 352— extract of trustee's dis- charge to he sent to accountant, 167, 326. Bondholder in competition with trustee, 97, 98. Books and papers of bankrupt, custody Cash payment not reducible, 181, 185. Caution for costs of litigation by bank- rupt, 57. INDEX. 489 Cautioner/o)- a debt not freed by creditor voting and ranking in a sequestration, 255 — where creditor takes composition extrajudicially, 255 — as to cautioner in an annuity where value fixed, 255. for composition in a seques- tration, 311 — a minor will not be re- ceived, 312 — letters of horning against cautioner, 313 — withdrawal of cautioner, 313 — claims against cautioner limited to two years, 319— when he may object to debts or securities, 319 — may call trus- tee to account, 318. for judicial factor, 223. ' under extrajudicial compo- sition contract, 15 — obligation must be in writing, 16 — when cautioner freed, 16 — his rights, 17 — his duties, 18 — pro- cedure against him, IS. under cessio, 29, 36. for trustee, 127 — liabilities of cautioner, 127, 286' — obligations in bond, 127, 286— not freed by neglect of commissioners, 12 s, 268 — where bankrupt has connived at trustee's malversation, 128, 268 — law procedure against trus- tee's cautioner, 12s — grounds for sum- mary diligence, 128, 268 — process in ordinary cases, 128 — bankrupt and his cautioner may sue by petition, 128, 318. Cessio, object of process, 26 — protection from imprisonment, 26 — surrender of estate, 26, 195. •, effect of decree as a protec- tion, 26 — as an assignation, 26, 195. title to sue, 26 — must be in- solvent and prove insolvency, 26, 196- other requisites to title, 27, 189. -, jurisdiction, 27 — Court of Ses- sion, 27, 193— Sheriff, 27, 189. -, procedure in Court of Session, 27 — summons, 27, 193, 197 — Gazette notice, 27, 193 — letters to creditors, 27, 193, 197— citation, 27, 193, 198-lodging documents, 28, 193, 198 — enrolment of process, 28, 198 — protestation, 28, 198 — preliminary objections, 28, 199 — as to parties not called, 28, 199 —liberation and interim protection, 29, 194, 199 — examination of debtor and disposal of case, 30, 193— disposal of same during vacation, &o., 30, 194 — expenses, 196 — reclaiming note, 31, 194- appeal to House of Lords, 31, 1 96 — renewed appli- cation for cessio, 31, 195, 200 — oath, 31, 196, 200— dyvour's habit, 32, 196— sisting of process till Act complied with, 32, 201. , procedure in Sheriff Court, 32 —petition, 32, 189, 203— productions, 32, 189— wai-rant, 32, 190— mode of intima- tion, 33, 203— mode of citation, 33, 203 — intimation of prayer for liberation, &c., 33, 204— lodging of documents, 33, 190— failure to do so, 33, 190, 204— en- rolment, 34, 204— appearance of credi- tors, 34, 206— attendance of debtor, 34, 206— objection that all parties not called, 34, 204— new diet of examination, 34, 204 — a sequestrated bankrupt lodges trustee's certificate, 35, 205— liberation or interim protection, 35, 194 — applica- tion for same, 35 — bond of caution, 35, 194, 205 — warrant to bring debtor for examination, 36, 196 — effect of Sheriff's warrants, 36, 195 — effect of warrant not to be suspended, 36, 195 — warrant may be recalled, 36, 195 — examination of debtor, 36, 191— proof, 36, 191, 205— proof of insolvency, 36, 196 — onus of proof on debtor, 37, 191 — specifioation of facts to be proved, 37, 205— mode of taking proof, 37, 205— hearing and de- cision, 37, 191, 206 — expenses, 196 — reclaiming petition, 37, 191, 206— review by Court of Session, 38, 192, 200— Court to dispose of case, if sitting, 38, 19'2 — if not sitting Lord Ordinary to do so, 38, 192 — review of Lord Ordinary's judgment, 39, 194 — appeal to House of Lords, 39, 196 — renewed application for cessio, 39, 195, 206— oath, 40, 196— dyvour's habit, 40, 196— Court of Session agents, 40, 196 — sisting process till Act complied with, 40, 207. , objections, 40 — concealment of funds, 40 — of state of affairs, 40 — fraud, &c., 40 — aliment of bastard, 40 — certifi- cate by trustee in sequestration not final, 40, 199, 205. -, sequestration may be reduced to cessio, 51, 333. Challenge, vide Reductions. Charge for payment a requisite of notour bankruptcy, 214. Citation on petition for sequestration, 231 — where mandatory applies, 232 — without witnesses, 338— inducite, 233. Claims of creditors, their requisites, 64 — claims for voting, 65 — for ranking, 68 — when to be lodged for dividends, 68, 69— what is a claim ? 248. Clerk, meaning of words " Clerk or Of- ficer of the Court of Session," 212. Clerk to meeting for election of trustee to be elected, 263 — and write minutes, 263 — election null if no clerk, 264 — as to a clerk for other meetings, '289. Commisssioners, 121 — constitution and termination of office, 121 — creditors elect commissioners,121, 271 — Sheriff de- clares election, 121, 271 — decision final, 121, 272— disqualifications, 121, 272— election of new oommisioners, 121, 272 — majority of creditors may remove, 121, 272 — resignation, 121, 272— declinature, 121, 272— incapacity, 121, 272— recall of mandate, 122, 272-— death, 122 — powers of commissioners, 122, 272 — quorum, 122, 272 — where trustee three months abroad, &o., 1'22, 270— access to sede- runt-book, &c., 122, 278 — may assemble at any time, 122, 279 — may report to meetings, 122, 279 — may call meetings, 122, 288 — as to fixing upset price of heritable estate, 122, 298 — cannot pur- chase estate, 122, 300 — postpone divi- dends, 122, 309 — alteration of dividends, 490 INDEX. 122, 310— arbitrations, 123, 338~duties of commissioners, 123 — to advise with trustee, 123, 276 — to concur with him in submissions, 123, 279— to audit his accounts, &c., 123, 303 — to declare sum for division, 123, 303 — same procedure for second dividend, 123, 308 — also for subsequent dividends, 123, 308 — author- ise trustee to notify postponement of dividend, 124, 309 — as to meeting for winding up estate, 124, 310 — audit trustee's accounts before composition approved of, 124, 318 — liabilities, 124 — censure, 124, 330 — removal, 124, 272, 330 — implement, 124— accounting, 124, 279 — reparation, 124, 330— law procedure against commissioners, 124 — accountant to inquire into complaint^, 125, 330— report to Court, 125, 330— censure, 125, 330— removal, 125, 330— petition for implement, 125 — action of accounting, 125, 279 — procedure under same, 125, 3IM— costs of process, 125, 279 — summons of damages, 125. Company, how rendered notour bankrupt, 9 — requisites for sequestration of com- pany, 2t8 — who can act for company, 226 — who makes oath for company, 231 — how cited, 232 — offer of composition by a company or a partner, 310 — partner naaking offer gets company's assets, 317 — no discharge to company but to part- ners, 316 — meaning of word " com- pany," 213. Competitions, how far evidence admissible in, 70 — procedure in competitions, 266, 267 — expenses of competitions, 352. Compromise of claims by creditors, 277 — resolution to compromise, 277 — rights of minority, 277 ; 'vide Compounding. Composition contract, extrajudicial, how constituted, 14 — special or general set- tlement, 14 — essentials of contract, 14 — special terms, 14 — express conditions, 14 — implied, 14 — offer and acceptance, 14 — termination of contract, 15 — By failure of express conditions, 15 — or im- plied, 15 — ^revival of debt, 15 — where preference is granted, J 5 — fraud, 15 — implement of contract, 15 — evidence of contract, 15 — not by parole, 15 — but by writing, 16 — different kinds of writing, 16 — proof by oath, 16 — rights and powers of debtor under contract, 16 — of creditors, 16 — of cautioner, 17 — duties and liabilities of debtor, 17 — of creditors, ]7— of cautioner, 18— law pro- cedure against debtor, 18— against cre- ditor, 18— against cautioner, 18. Composition contract under sequestration, 46— offer at first meeting, 46, 310— ma- jority to entertain, 46, 311 — Gazette no- tice and circulars, 46, 311 — acceptance, 47^ 31*— bond for composition, 47, 312 — report by trustee, 47, 312— hearing parties, 47, 312— objections, 313, 314— judgment of Court, 47, 312— offer at subsequent meeting, 47, 314— majority to entertain, 47, 314^Gazette notice and circulars, 47, 314 — majority to ac- cept, 47, 314 — same procedure as in case of offer at first meeting, 48, 314 — bankrupt to make oath or declaration if offer carried, 48, 315 — discharge by Court, 48, 315 — reduction of same, 316, 326 — re-investiture of bankrupt, 48, 3! 5 — case of company, 316 — right to chal- lenge preferences, 317 — recording of bond of caution, 48, 315 — extract to be sent to accountant, 48, 315 — abbreviates to be issued and recorded, 48, 352 — effect of discharge, 48, 315 — entry to be made in Eegister of Sequestrations, 48, 315 — audit of trustee's accounts, 49, 318 — discharge to trustee, 318 — account- ing, 318 — fixing of remuneration, &c., 49, 318 — sequestration goes on notwith- standing offer, 49, 318 — new offer where previous offer rejected or ineffectual, 49, 319 — mode of recovering composition, 313 — remedy against cautioner lost in two years, 319 — bankrupt and caution- er's objection to debts, 319. Compounding of claims by trustee, 338 j vide Compromise. Computation of time, 213. Confidential communications, vide Law- agent, Wives. Conjunct and confi,dent persons, aliena- tions to, reducible, 4, 176 — conjunct and confident person with bankrupt not eligible as trustee, 263 — nor as com- missioners, 272— who are conjunct and and confident persons, 178. Contingent claims not a ground for se- questration, 221 — to be valued, 253 — what is a contingent claim ? 222, 254 . Continuance of notour bankruptcy, 216. Conveyance of creditor's security to be granted to trustee on his paying speci- fied value, 255, 259. Co-obligant not freed by creditor voting, &c., 255. Corporation, vide Incorporation. Correction of oath, 252. Court of Session may entertain reduc- tions by action or exception, 216 — effect of decree by exception, 216; vide Cessio, Review. , appellate jurisdiction of, in sequestrations, 129 — recall mea- sures for preservation, 129, 223 — where more than one sequestration, 129, 224 — remit to Sheriff, 129, 224 — deliverance awarding sequestration, 129, 236 — judg- ment granting or refusing liberation, 129, 245— Sheriff's valuation of contin- gent claim, 129, 253 — his valuation of an annuity, 129, 254 — his declaration of election of trustee,, 129, 267 — his de- liverance confirming, 129, 269 — declara- tion of election of commissioners, 129, 271 — warrants of commitment by She- riff, 130, 285 — trustee's judgment on claims, 130, 306 — commissioner's deli- verance fixing trustee's remuneration, 130, 318 — resolutions of creditors, 130, 333 — deliverance of trustee and com- INDEX. 491 Court op Session— Continued. missioners, 130, 333— procedure, 130, 334— Sheriff's deliverance, 131, 336— Lord Ordinary's judgment, 131, 336^ form of review of Lord Ordinary's ludg- ment, 131, 337. ■ , original jurisdiction of, in sequestrations, 131 — common law ju- risdiction, 131, 218— domicile, 131, 219 — residence for forty days, 131, 219— ownerahip of heritage, 131, 219 — aiTest- ment of moveables, 131, 219 — other re- quisites, 131, 218. , functions of, and forms of procedure in sequestrations, 132 — where petition for sequestration with- out debtor's consent, 132, 222 — mea- sures for preservation, 132, 223 — power to award sequestration, 132, 224, 351 — but not if a sequestration pend- ing in another Court, 132, 224 — re- mit sequestration to Sheriff, 132, 225 — if Sheriff has refused to sequestrate, Court of Session may do so, 133, 225 — citation, &c., where petition for sequestration is without debtor's con- sent, 133, 231 — sequestration of com- pany estates and of partners may be separately or jointly, 133, 232 — inducise of citation* 133, 233 — Gazette notice of diet of appearance, 133, 233 — sequestra- tion to be awarded if with consent of debtor, &c., 133, 233 — awarding of se- questration without consent, 134, 235 — where petition for recall within forty days, &c., 134, 236 — where nine-tenths of the creditors apply for recall, 135, 238 — sisting of creditors in law proceed- ings, 135, 239 — sist of sequestration with a view to deed of arrangement, 135, 240 — interim management, 135, 240 — where deed of arrangement pro- duced, 135, 240— where deed not pro- duced, 136, 242— Court may grant pro- tection to bankrupt, 136, 244 — also liberation from prison, 136, 244 — effects of oath, 136, 256 — Court orders meeting of cretitors to elect trustee, &c., 136, 262 — authentication of copy trustee's act and warrant, 137, 269 — where re- moval of trustee applied for by one- fourth of the creditors, 137, 270— appli- cation for special allowance to bank- rupt, 137, 274 — application for trastee's dismissal for retention of moneys in his own hands, 137, 278 — factor, &c., amen- able to Court by petition, 137, 279— warrant to bring bankrupt from Eng- land or Ireland for examination, 137, 282 — application by latent partner of a company for benefit of Act, 138, 286 — petition by trustee for subsequent ac- quisitions, 138, 292 — petition to have an estate struck out of sequestration, 138, 293 — petition by trustee to have suc- cessor to denude, 138, 294— petition against heritable creditor to account, 139, 297 — report of scheme of division among heritable creditors, 139, 299— application for payment of preferable claims, 139, 299— application for accel- eration of dividends, 139, 309 — also for alteration of same, 139, 310 — may ap- prove of composition contract, 140, 312 — may grant discharge, 140, 315 — but audit by commissioners must first take place, 140, 318— trustee and ca\itioner liable to account, 141, 318— petition by bankrupt for discharge without com- position, 141, 320 — granting of discharge, 142, 323— may order pension, &c., to be paid to trustee, 142, 324 — procedure against creditor who has received pre- ferences, &c., 143, 235 — application to have banki-upt's discharge annulled, 144, 326 — application for trustee's discharge, 144, 326 — application as to consigned dividends, 144, 327 — removal or censure of trustee for failing to make annual return, 144, 329— report by accountant on conduct of trustee or commissioners, 144, 330 — report by accountant of state of each sequestration, 144, 330— report by him of disobedience of trustee, &c., 145, 330 — absence of accountant, &c., 145, 331 — trustee in cessio acts under control of accountant and Court, 145, 333 — report of resolution by creditors that bankmpt only to apply for decree of cessio, 145, 333 — appeal toHouse of Lords, 146, 337 — bankrupt's letters, 146, 339. Creditors under an insolvency/, 3 — they may reduce gratuitous alienations at common law, 3 — also under Act 1621, 4 — also preferences at common law where grantor insolvent, 6 — and under Act 1621, 7 — may also raise judicial sale and ranking, 8 ; vide Insolvency. under notour hanh^ptcy, vide Notour bankruptcy. under extrajudicial composi- tion contract, 14 — constitution of con- tract, 14 — termination, 15 — evidence of same, 15— rights and powers of creditors, 16 — duties and liabilities of creditors, 17 — law procedure against creditors, 18 ; vide Composition contract. under trust-deeds, 19— constitu- tion of trust, 19 — termination of trust, 20 — evidence of tmst and accession, 21 — rights and powers of creditors, 22 — duties and liabilities of creditors, 24 — law procedure against creditors, 25; vide Trust-deed. under cessios, vide Cessio. - UNDER A SEQUESTRATION, guali- fications of, 64 — meaning of word ''cre- ditor," 213 — requisites for petitioning or concurring, 64 — amount of debt, 64, 221 — nature of debt, 64, 221 — contents of oath, 64, 227 — affirmation, 64, 226— oath of credulity, 64, 230, 231 — where creditor abroad, 64, 227, 230 — when creditor a corporation, Q6, 231 — where under incapacity, 65, 231 — before whom oath to be taken, Q5, 227, 230— when debtor in Sanctuary, 65, 230 — if debtor dead, Qb, 230 — production of vouchers. 492 INDEX. Creditors under a sequestration — Contimied. 65, 24:'J —requisites for voting and acting , 65 — productions for that purpose, &b, 247— deduction of interest, &c., in oath, QQ, 253 — where debt contingent must be valued, 66, 253 — also where it is an annuity, 66,254 — valuation of securities, QQ, 256 — also obligants, 67, 257 — valua- tion of claim on company estate, 67, 258 — where debt acquired after sequestra- tion, 67, 260 — correction of claim, 67, 252 — creditor may make new claim, 68, 259 — requisites for ranking, 68 — time for lodging claims, 68, 301 — time for establishing claim or recovering vouch- ers, 68, 251 — equalising dividend, 69, 302 — where creditor abroad, 69, 303 — valuation of securities, 69, 260 — trustee entitled to assignation, 69, 260 — valua- tion of claim on company estate, 69, 2&1— evidence of qualifications, 70 — pro- duction of oaths, 70, 225, 247^also ac- counts and vouchers, 70, 225, 247 — where oath or vouchers lost, 70, 248 — where same borrowed up, 70, 248 — where claim once found bad, 70, 226 — claim may be cut down by counter evi- dence, 70 — rules of evidence as to claims, 70 — reference to oath incompetent, 70 — also parole proof, except in rankings, 70 — production of writs, 71 — diligence for recovery of same, 71— nature of dili- gence allowed, 71 — must be for specific documents, 72 — interruption of pre- scription, 72 — majorities of, how com- puted, 72— majority in value determines questions generally, 72, 288 — all credi- tors included, 72, 288 — creditors under £20, 72, 288 —computation of majority in number, 72, 288 — where numbers frac- tional, 73, 320 — meetings of, hovj consti- tuted, 73 — how general meetings called, 73,288— Gazette notice, 73, 288— special notification, 73, 288 — requisites to con- stitution of first meeting of creditors, 73, 262 — of second statutory meeting, 74, 280 — of meeting for winding up estate, 75, 310— of special meeting for receiving offer of composition, 75, 314 — of special meeting for receiving renewed offer, 75, 319 — of meeting for accepting an offer of composition, 75, 310, 314:^ — of meeting for trustee's discharge, 76, 326. , rights of, in estate, 76 — estates belong to creditors, 76, 234,235 — nature of their right, 76, 234, 235 — their right in a question with bankrupt, 76, 234,297 — also in a question with particu- lar creditors, 77, 295 — and with dispo- nees, &c., 77, 246 — trustee's investiture excludes third parties, 77, 289 — trustee's right is for behoof of creditors, 77, 289 — proceeds of estate belong to creditors, 77, 300 — rights of minority of creditors in abandoned estates, 277- -, powers of, 78 — powers of i dividual creditor's, 78 — to apply for seque- stration, 78, 218, 221— for appointment of judicial factor, 78, 223 — to have bank- rupt's premises secured, &c., 78, 224 — to appeal against sequestration where more than one, 224 — proceedings after appeal, 78, 225 — after date of sequestra- tion creditor cannot be confirmed exe- cutor, 78, 235 — nor raise adjudication, 78, 235— creditor may apply for recall, 79, 236 — may be sisted in place of other creditor, 79, 239 — who may oppose libe- ration of bankrupt, 79, 245— creditor cannot detain or imprison bankrupt after liberation or protection, 79, ^45 — creditor may correct valuation, 79, 259 — may vote by mandatory, 79, 259 — cre- ditors who cannot vote for trustee, 79, 260~creditors may require Sheriff to attend first meeting, 79, 263, 270 — may object to trustee's election, 79, 266 — one- fourth of ci'cditors may apply for trus- tee's removal, 79, 270— may have meet- ing called to devolve estate on next trustee, 79, 270 — may apply for trustee's dismissal for retention of funds, 80, 278 — may inspect sederunt-book, &c., 80, 278 — may call trustee, &c., to account, 80, 279 — may interrogate bankrupt, 80, 285— where his debt is under £20, 80, 288 — creditor may purchase estate, 80, 300 — may appeal against trustee's deci- sions, 80, 306, 308 — may lodge new claim where claim rejected, 80, 306 — entitled to dividend, 80, 307, 308— may object to offer of composition, 80, 312, 314, 319 — may require bankrupt to make oath, 80, 315, 323 — may appeal against commissioner's audit, 80, 318 — entitled to composition where debt not objected to, 81, 319 — cannot ask com- position from cautioner after two years, bl, 319 — may oppose bankrupt's dis- charge, 81, 321 — cannot acquire prefer- ences, 81, 325 — may bring creditor into Court who has got preferences, 81, 325 — may have bankrupt's discharge an- nulled, 81, 326 — may apply for con- signed dividend, 81, 327 — may sue for trustee's removal, ol, 329 — may com- plain to accountant, 81, 330— may ap- peal against resolutions of creditors, 82, 333 — also trustee's deliverances, 82, 333 — also Sheriff's deliverances, 82, 336 — may bring Lord Ordinary's judgment under review, 82, 337 — may appeal to House of Lords, 82, 337 — may vote in all questions at meetings, 82, 247, 288 — may bring merits of resolutions under review, 82, 335 — powers of majorities of concurring creditors^ 82 — may apply for recall of sequestration at any time, 82, 238 — may subscribe deed of an*ange- ment, 82, 240 — may assent to new offer of composition, 82, 319 — may concur in bankrupt's discharge without composi- tion, 82, 320 — powei'S of majorities of creditors at meetirigs, 83— resolution to carry deed of arrangement, 83, 239 — to grant personal protection, 83, 244 — to demand assignation from creditor, 83, INDEX. 493 A SEQUESTRATION — Cheditors under Continited. 259— to elect trustee, 83, 263— to fix security, 83, 267 — to remove trustee, 83, 270 — to devolve estate on next trus- tee, or elect a new one, 83, 270— to elect comnaissionei's, 84, '2ji — to remove com- missioner, and elect another, 84, 272 — to renew protection, 84, 273 — to make allowance to bankrupt, 84, 274 — to give directions to trustee, 84, 276, 287 — to determine as to sale of heritable estate, 84, 287 — to authorise prosecution against bankrupt, 84, 2S7— may determine ques- tions generally by a majority in vaUie, 84, 28S — may accelerate dividend, 84, 309 — may authorise winding-up of estate, 85, 310 — may entertain offers of com- position, Sr), 311, 314 — and accept same, 85, 312, 314, 319 — may resolve that bankrupt only entitled to cessio, 85, 333 — may authorise prosecution against any one guilty of falsehood, 85, 338. , liability of, S5— their liability for authorising trustee to go beyond statute, S5 — not liable for expenses un- less on special gronnds, 86, 256. , preferable, 87 — must lodge claims, 87 — but privileged creditors not bound to value and deduct, S7 — rights of preferable creditors in estate gene- rally, 87 — may petition for sequestra- tion, &c., 87— must value and deduct before voting, 87, 256 — can only rank for balance, 87, 256 — may claim compo- sition on whole debt, 88, 311 — rights of heritable creditor in subject of security, 88 — vide Heritable creditor — rights of adjudger in subject of security, 89 — adjudger in competition with trustee, 89 — rights of inhibitor in subject of secu- rity, 89 — effect of an inhibition, 89 — rights of creditors of bankrupt's ances- tor in subject of security, 89 — creditors of bankrupt's ancestor have a prefer- ence for three years, 89 — ^but estate falls to be managed under sequestration, 90 — rights of landlord in subject of se- curity, 90 — landlord's rights not affected by sequestration, 90 — rights of arrester in subject of security, 90— arrester prior to sixtieth day preferable, 90 — rights of poinder in subject of security, 90 — poinder prior to sixtieth day preferable, 90 — rights of law-agent in subject of security, 90 — law-agent gives up papers to trustee, resei-ving lien, 90— rights of bolder of lien generally in subject of security, 91 — holder of lien retains secu- rity, 91 — but trustee entitled to inspec- tion, 91. Crown preference for taxes, 305 — how far Crown affected by bankrupt's discharge, 324. D Date of deeds, 214. Days, how computed, 213. Deathbed expenses, preference for, 305. Debt, amount of, in creating notour bank- mptcy, 21 4 — am ount and nature of debt to authorise sequestration, 221 — when small sum paid for same, 222 — where portion paid after sequestration applied for, 222 — payment of debt does not take away effects of notour bank- ruptcy, 216 — but prevents sequestra- tion, 235 — debt means principal and in- terest^ &c., 221 — future debt is a basis of sequestration, 222— preferable debts, 300, 301, 305— liquid and illiquid debts, 222 — contingent debts, 221, 254; vide Prescription. Debtor, insolvency of, 1 — incapacity of, 2 — vide Composition - contract. Trust- deed — meaning of word "debtor" by Act 1856, 212 — debtors, how ren- dered notour bankrupt, 214 — all debtors are liable to sequestration, 218 — al- though minors, lunatics, or wives, 219. Deceased debtor, estates of, subject to se- questration, 219 — on petition of credi- tor, 219 -or mandatory, 219 — jurisdic- tion necessary, 219 — amount of credi- t-or's debt, 221— nature of same, 221 — when sequestration applied for, 222 — when to be awarded, 222 — interim pre- seiTation, 223 — in what Court compe- tent, 224 — remit, 225 — two or more se- questrations, 224 — where Sheriff refuses sequestration, 225 — form of petition, 225 -productions, 226— oath, 227, 230— special oath, 230 — citation, 231 — indu- ciffi, 233 — opposition, 234, 235— award- ing, 234, 235 — confirmation by executor- creditor incompetent, 235 — also adjudi- cation, 235 — recall, 236 — where successor has made up title, 294— preferences in case of a deceased debtor, 296. Declarations in lieu of oaths, 226 — declara- tion by bankrupt prior to discharge, 315, 323 — in cessios, 191. Decree of maills and duties, see Maills and Duties. Deeds, date of, 214 — deeds reducible, 178, 185 ; vide Insolvency, Notour bank- ruptcy. Deed of arrangement, 45— resolution of creditors, 45, 239 — report to Sheriff, 45, 240 — sist of sequestration, 45, 240 — interim management, 45, 240 — produc- tion of deed, 45, 240 — nature of same, 46, 241 — intimation to creditors, 46, 240 — approval of deed, 46, 240 — hear- ing of parties, 46, 240 — if not carried through, procedure resumed, 46, 242 — recording of judgment of recall, 46, 242. Deliverance, meaning of word " deliver- ance," 212 — the effect of deliverances in evidence, 337 — may be printed or in writing, 338— or partly both, 338. Diet of appearance, 233. Diligence for recovery of proof of notour l^nkruptcy, 232— also to recover docu- ments in competitions, Ac, 71. Discbarge of Bankrupt under private com- posiiion-contract, 15 — revival of debt, 15, 17 — where an absolute discharge, 15 — debtor's right to discharge, 16. 494 INDEX. Discharge of Bankrupt under trust-deed, 22 — if stipulated for and agreed to, 22 — stipulation for discharge makes deed re- ducible, 20 ; vide Trust-deed, Discharge of bankrupt under sequestra- tion — where coviposition carried, 48, 315 — objection to discharge, 316 — discharge of company or partners, 316 — nature of discharge, 48, 315 — effect of same, 48, 51, 316 — discharge without composition, 49, 320— when he may apply, 49, 320— concurrence necessary, 49, 320 — neutral- ity, 322 — recall of concurrence, 322 — Gazette notice and letters, 50, 321 — appearance in Court, 50, 321 — objec- tions, 50, 322 — trustee's report, 50, 321 — judgment of Court, 50, 321, 356 — de- claration, 50, 323 — commission to take same, 51, 323 — deliverance of discharge, 51, 323 — bankrupt's right in estate with- out re-investiture, 324 — extract to be sent to accountant, 51, 323 — recording of abbreviates, 51, 352 — Crown debts, 51, 324 — reduction of discharge, 312, 316, 326. Discharge of trustee, iiide Trustee. Discount, deduction of, 222, 253. Disponeeincompetition with trustee, 97,98. Divestiture of bankrupt, 54, 234 — his radi- cal right in estate, 234, 324 — subsequent acquisitions, 55, 292 ; vide Bankrupt's rights of property. Dividends, meaning of, 217 — payment of, 300 — when oaths to be produced, 301 — failure to do so, 301 — failure to produce vouchers, 302 — where creditor resident abroad, 303 — proceedings preparatory to dividend, 303 — adjudication upon claims, 304 — notification to creditors, 305 — appeals, 306 — scheme of division, 306 — payment or consignation of divi- dends, 307 — second dividend, 308 — sub- sequent dividends, 308 — acceleration of dividends, 309— postponement of divi- dends, 309 — alteration of dividends, 310 — winding up of estate, 310 ; vide Trus- tee's duties. Creditor's rights. Dyvour's habit abolished, 196. Edictal citation, 232, 233 — inducise of, 233 — two kinds of edictal citation, 233. Election of trustee, mrfe Trustee. Equalisation of arrestments and poindings, vide Arrestments, Poindings. Estates, meaning of word ^'estates," 212. Evidence in support of challenges of gra- tuitous alienations, 3, i—vide Insolv- ency — evidence in support of challenge of preferences, 6, 7, 11— vide Notour bankruptcy — evidence of insolvency in a judicial sale, 8— evidence of extrajudi- cial composition-contract, 15— evidence of trust and accession, 21 — onus of proving insolvency in a cessio, 3), 36 — proof to be allowed, .31, 36— mode of taking proof, 3 1 , 37— evidence of seques- tration, 52— evidence of qualifications of creditors in a sequestration, 70 — rules of evidence in petitioning, voting, and ranking, 70 — evidence of trustee's ap- pointment, 95 — evidence of judicial fac- tor's appointment, 120 — evidence of sederunt-book, 279 — evidence of oaths in sequestrations, 256 — trustee may call for evidence in adjudicating upon claims, 304 — Sheriff also may do so, 305 — evi- dence of imprisonment, 215 — evidence of notour bankruptcy, 215 — evidence of de- liverances, 337 — how far bankrupt's ex- amination is evidence, 284 — evidence of minutes of meetings, 203, 289 — parole proof not admissible, 263. Examination under cessio, vide Cessio — ex- amination under sequestration, diet for, to be fixed, 280 — warrant to bring bank- rupt up for examination, 281 — appre- hension and transmission of bankrupt when out of Scotland, 282 — examination of banlo-upt's wife and other parties, 282 — parties who may be examined, 282, 283 — parties who may put questions, 285 — all lawful questions to be answered, 283 — what are lawful questions, 283, 284, 285 — mode of examination, 234 — com- mission may be granted, 281, 282 — penalty on refusal to answer, 285--cora- mitment of bankrupt and recall of war- rant, 285 — latent partners to disclose themselves prior to examination, 286 — bankrupt to take oath, 286-— form of oath, 286 — re-examination of bankrupt, 281, 292— of third parties, 283. Execution of search is the mode of prov- ing flight, 215. Executor -creditor cannot confirm after sequestration, 235 — he is superseded by trustee, 101. Exoneration of judicial factor, 224; vide Judicial factor. Expenses of arrestments and poindings, when to be allowed, 217 — expenses of obtaining sequestration to be paid, 242 —expenses of applying for sequestra- tion, 236 — creditors not liable in ex- penses by voting, &c., 256 — expenses of sequestration as against holders of secu- rities, 301 — expenses incurred by trustee to be taxed, 328 — expenses of competi- tions, 352 — expenses of appeals, 306 — bankrupt finds caution for expenses when litigating, 57 — expenses of trust- deed, 23 — expenses of cessio, 196 — lia- bility of trustee for expenses, 269. Extracts of deliverances to be jyrima facie evidence, 337. Factor, see Judicial factor, Agent. Falsehood, punishment of, 338. Fees of proceedings for record-keepers, &c., 347— to Bill Chamber Clerks, 347— to Sheriff Clerks, 347. Flight, vide Absconding. Forcible defending of person against dili- fence a requisite of notour bankruptcy, 14. INDEX. 495 Forthcoming, decree of, sequestration equivalent to, 295 — where arrestment within sixty days, 217. Forum of sequestration, 224. Fraudulent alienations, vide Insolvency, Notour bankruptcy. Fraudulent bankruptcy, 287, 331. Fraud in entering into transactions after insolvency, 2 — also in making gratuitous alienations, 3 — basis of this fraud, 3— evidence of same, 3 — fraud on part of receiver not necessary, 3 — fraud not necessary in a reduction under Act 1621, 4 — fraud in granting preferences after insolvency, 6 — basis of this fraud, 6 — evidence of same, 6 — fraud on part of receiver not necessary, 6 — fraud in de- feating a creditor's diligence, 7 — fraud under Act 1696 not necessary, 11 — fraud in a composition- contract, 15 — fraud a ground for refusing cessio, 40 — also for reducing bankrupt's discharge, 312, 316, 326. Future debt a basis of sequestration, 222. Funeral expenses, preference for, 305; vide Preferable creditor. Gazette, meaning of word ''Gazette," 212 — to be patent to the lieges on pay- ment of fee, 339 — copies to be furnished, 339 — expenses of advertisements, 340 ; vide Notices. Gratuitous alienations, vide Insolvency. Guardian, vide Agent. Heritable, meaning of word " heritable,'' 212. Heritable creditor, rights of, in subject of security, 88 — his right in estate gener- ally, 87 — heritable creditor not affected by sequestration, 88, 290 — his right of voting, 88, 256 — heritable creditor may sell, 88, 297 — posterior heritable credi- tor may call creditor who sells to ac- count, 88, 297 — heritable creditor may concur in sale by tnistee, 88, 298 — sale of heritable estate by trustee, 88, 298 — heritable creditor may concur in sale by private bargain, 88, 299 — he may apply for interim warrant, 88, 299 — poinding of the ground, 89, 299 — maills and duties, 89, 299 — preferable for . three half-years' interest, 89, 299— may pur- chase estate, 89, 300 — not liable for ex- penses of sequestration, 301. Heritable estate, sale of, 276, 297 — vesting of heritable estate in trustee, 290 — who may purchase, 300; vide Trustee's rights and powers. Hypothec, vide Landlord, Law-agent. Illiquid debts are sufficient for sequestra- tion, 221 — what are illiquid debts, 222. Imprisonment is a requisite of notour bankruptcy, 9 — how proved, 215 — per- sons not subject to imprisonment, 215 — imprisonment in cases of cessio, how far necessary, 189. Incorporation, how rendered notour bank- rupt, 219— may be sequestrated, 218 — oath by incorporation, now made, 231. Inducise of citation, 233. Inhibiter, right of, in estate generally, 87 — in svibject of security, 89 — in compe- tition with trustee, 99. Inhibition, effect of, on trustee's investi- ture, 290 — its effect on conveyance by trustee to purchaser, 294 — registration of abbreviate of sequestration to have effect of inhibition, 48, 246. Inhibitions, register of, 246 — abbreviate of sequestration to be recorded in, 48, 246 — also abbreviate of bankrupt's dis- charge, 352 — and abbreviate of petition against bankrupt's heir, 294. INSOLV£^^GT, dejiniiioiis of, in question with debtor, 1 — in a question with credi- tors, 2 — in a judicial sale, 2. , genei'al effects of 2 — does not per se incapacitate from transacting, 2 — but resolution to abandon does, 2 — stoppage ill transitu, 3— subjects heri- tage to judicial sale, 8 — requisites, 8. , effects of, on gratuitovs alienations at common law, 3 — they are frauds, 3 — evidence of fraud, 3 — fraud on part of receiver not necessary, 3 — insolvency necessary, 3 — also non-oner- osity, 3 — creditors who may challenge, 3 — trustee in sequestration, 3 — challenge by action or exception, 3 — and in Sheriff Court, 3. , effects of, on gratuitous alienations by Statute 1621, Part I., 4 — fraud not necessary, 4 — what are aliena- tions, 4, 178 — ground of challenge, 4 — pursuer must be a creditor or trustee, 4, 177 — debt prior to alienation, 4, 177 — re- ceiver must be conjunct or confident, 4, 178 — debt must be presently insolvent, 4, 178 — also at date of deed, 4, 179 — onus of proof, 4, 179— defences, 5, 179 — form of action, 5, 180 — action or exception, 5, 180— in what court, 5, 178— effect of reduction to creditor, 5 — to interposed person, 5— to third party, 5. effects of, on -preferences at coimnon law, 6 — it is a question of fraud, 6 — evidence of fraud, 6 — fraud by receiver not necessary, 6 — insolvency necessary, 6— implement of prior obli- gation, 6 — what creditors may reduce, 6 — trustee may, 6 — challenge by action or exception, 6 — in what court, 6. , effects of, on preferences hy Act 1621, Part II., principle of litigios- ity, 7 — grounds of challenge, 7 — pursuer must be a creditor, 7— defender the grantee, 7 — deed after commencement of diligence, 7— fraud necessary, 7, 181 — also insolvency, 7, 181 — who may sue, 7 — jurisdiction, 7 — form of challenge, 7 — 496 INDEX. l-NSOLYENCY—Coniimied. effect of challenge to debtor, 7 — inter- posed person,? — grantee^ 7 — disponee,7. ■ necessary in a cessio, 26, 196 —and must be proved by the debtor if necessary, '26, 196 — also necessary in notour bankruptcy, 183, 214 — not neces- sary in sequestrations when debtor ap- plies, 220 — when necessary, 219, 232. Interposed persons, effect of reductions to, 5, 7 ; vide Insolvency. Interest, deduction and accumulation of, in voting and ranking, 253 — deduction of interest in petitioning, 222. Interest, penal, on money in trustee's hands, 278 — commissioners to debit him with penal intei-est, 303. Interim liberation in cessio, 190, 199, 205 — granting of same, 194, 199, 205. Interim possession, regulation of, during appeals, 337- Interim preservation of estate, vide Judi- cial factor. Interim protection in cessio, 190, 199, 205 — granting of same, 194, 199, 205. Interim protection in sequestrations, 244 ■ — Gazette notice of same, 244 — effect of same, 245. Investiture of trustee in estate, vide Trustee's rights. Intimations to creditors, vide Notice. Judicial factor, 119 — appointment, 119, 223 — Court makes appointment, &c., 119, 223— caution, 119, 223— recall, 119, 223 — discharge of factor, 119 — on ap- pointment of trustee, 119 — evidence of appointment, 120 — within Scotland, 120 — in rest of Her Majesty's dominions, 120, 337 — deliverances in printing or writing, 120, 338 — powers of judicial factor, 1 20, 223 — to preserve estate, 120, 223 — what preservation includes, 120, 223 — duties of judicial factor, 120, 223 — to preserve estate, 120, 223 — pro- cedure against factor, 120, 279 — petition for accounting, 121, 279. Judicial sale competent upon debtor's in- solvency, 8 — requisites of process, 8 — estates under sequestration may be sold under judicial sale, 276, 287. 298. Jurisdiction warranting sequestration, 219; vide Court of Session, Sheriff, Cessio. Justice of Peace to take oath, 227 — requi- sites of same, 229— no matter of what county justice is, 227 — Scotch justice in England, 227 — where creditor out of England, 230. K Keys of bankrupt's premises to be kept till trustee elected, 224. Landlord, hypothec reserved under Bank- rupt Act, 300— in what order preferable, 305— his rights against general estate, 87 — against subject of security, 90 — trustee's right to lease. 99 — landlord may accept trustee, 56 — where creditors excluded from lease, 56 — irritancy of lease, 53. Latent rights to bankrupt's property in a question with trustee, 100. Law accounts to be taxed, 328. Law-agent's communications with bank- rupt not privileged, 284 — correspond- ence between receiver of deed and law- agent under Act 1621 not privileged, 181 — trustee under trust-deed cannot act as law-agent and charge fees, 23. Law -agent under sequestration, 126 — nature of of&ce, 126 — appointed by trustee, 126 — rights of law-agent, 126 — claim against trustee, 126 — whether he has funds or not, 126 — law-agent's claim against estate, 126 — his lien, 126 — his rights over estate generally, 87 — his right over subject of security, 90~in competition with trustee, 101 — law- agent's accounts to be taxed, 328 — no claim against creditors, 126, 256 — powers of law-agent, 126 — nature of ap- pointment, 126— appear in process and sign abbreviate, 126 — as to Gazette notices, 127 — duties of law-agent, 127^ no statutory duties, 127 — liabilities of law-agent, 127 — not liable for trustee, 127 — Taw procedure against law-agent, 127— petition for papers, 127 — also for specific moneys, 127 — general account- ing, 127. Lease, assignation of, in competition with trustee's right, 99 — irritancy of, 53; vide Landlord. Letters, vide Post-letters, Notices. Liberation of debtor in sequestration, 244 — procedure to obtain same, 244. Lien, holder of, his right over estate gene- rally, 87 — his right over subject of security, 91 ; vide Preferable creditorj Law-agent. Liquid debts, 222. Locking up shop, &c., 224. Lord Ordinary, meaning of words "Lord Ordinary," 212; vide Court of Session. Lunatics may be rendered notour bank- rupt, 215 — how rendered, 215 — may be sequestrated, 219 — who makes oath for them, 231. M Magistrates to take oath, 227, 230. Maills and duties, effect of decree of, in competition with trustee, 89. Majorities of creditors, how computed, 72 ■ — powers of majorities of concurring creditors, 82 — power of majorities of creditors at meetings, 83. Management of estate, vide Trustee. Manager, vide Agent. Mandatory may apply for sequestration of deceased debtor's estates, 219— as to citation, 232 — mandatory may make oath of credulity, 230— also make cor- rection on oath, 252 — may vote, 259 — INDEX. 497 extent of his powers, 260 — requisites of mandate, 259— nature of same, 2B0 — mandate for sequestration, 225. Meditatione fugse warrant competent thougli personal protection granted to bankrupt, 245. Meetings of creditors requisites to their constitution, 73 — of general meetings, 73 — mode of procedure at same, 289— adjournment, 288 — requisites to the constitution of special meetings, 73 — of meeting for election of trustee, 73 — creditors entitled to vote at, 247 — time and place of meeting, 263 — ad- journment, 263 — attendance of Sheriff and Sheriflf Clerk, 263— Sheriff's fee, 357 — their duties, 263 — ordinary preses and clerk, 263 — their duties, 263, 266 — bankrupt must deliver state, 275 — deed of arrangement may be resolved on, 239 — election of trustee, 263 — in case of company, 283 — caution for trustee, 267 — to fix on bank, 276 — may grant per- sonal protection to bankrupt, 244"-re- newal of, 273 — allowance to bankrupt, 274 — offer of composition maybemadeat, 310 — assignment to securities, &c,, may be demanded, 259 — objections to trustee, 263 — when and how to be stated and disposed of, 266 — commissioners to be elected, 271 — of second meeting, 74 — procedure thereat, 287— trustee's re- port, 287 — directions by creditors^ 287 — offer of composition, 314 — acceptance of offer at this meeting, 312— granting or renewal of bankrupt's protection, 244, 273 — allowance to bankrupt, 274— de- mand for assignation of securities, 259— fixing on bank, 276 — acceleration of dividends, 309 — of meeting for winding up estate, 75 — mode of procedure there- at, 310 — of meetings for receiving offer, 75 — mode of procedure thereat, 310, 314 — of meeting where offer fallen, 75 — procedure thereat, 319 — of meetings for accepting offer, 75 — mode of procedure thereat, 312, 314, 319 — of meeting for trustee's discharge, 76 -procedure there- at, 326 — who may call meetings gener- ally, 288 — notice of, 288— majorities at meetings, 72, 83 — resolutions appeal- able, 333 ; vide Creditors. Members of House of Commons, how rendered notour bankrupt, 215 — may be sequestrated, 218— effect of sequestra- tion on membership, 53. Messengers-at-arms to act in sequestra- tions, 169. Minister's glebe attachable, 234. Minor may make oath if above fourteen years, 231 — niay be made notour bankrupt, 215 — and be sequestrated, 219. Minority of creditors, their right to aban- doned claims, 277. Minutes of trustee's election to be written ' in presence of meeting, 263 — what to be entered therein, 263 — when minutes probative, 289 — where two minutes 2 written, 289— minute-s are the only proof of meetings, 263. Month, meaning of word "month," 213. Moravian's declaration, 226. Moveable, moaning of word "moveable," 212. Moveable estates, sale of, 277— vesting of same in trustee, 289 — who may pur- chase, 300 ; vide Trustee's rights and powers. Note of objections, vide Trustee. Notice of meetings, 2>sS— to whom notifi- cation to be given, 2S8 — notice of deed of ai-i-angement, 240— notice of bank- rupt's exanaination and second meeting, 280 — notice of offer of composition, 311, 314, 319 — notice of petition for discharge by bankrupt, 321 — notice of trustee's deliverance and claim, 305, 303— of pay- ment of dividend, 307, 308— of accelera- tion, 309. Notice, Gazette, of meetings generally under sequestration, 288 — of deliverance on petition, 233— of petition for recall, 2:j7, 238— of deed of arrangement, 242— of interim protection, 244— of awarding of sequestration, 246 — error or omission, 247— notice of first meeting, 262— of re- moval of tmstee, 270— of bankrupt's ex- amination and second meeting, 280 — of trustee's petition to secure new acquisi- tions, 292— of payment of dividends, 305, 303 — of postponement of dividends, 309 — of meeting for winding up estate, 810— of offer of composition, 311, 314, 319 — of bankrupt's application for dis- charge, 321 — of multiplepoinding to dis- tribute preferences, 325 — of meeting for trustee's discharge, 326 — of accountant's report, 330— Gacette notice imder ces- sios, 190, 194. Notour bankruptcy, constitution of, 214 ■ — evidence of, 215— all debtors may be rendered notour banknipt, 219 — amount of debt, 214 — if a company, 9, 216 — com- mencement of, ,9, 216 — termination, 10, 216— effect of payment of debt, 216. , effects of, on pre- ferences ly deed, 10 — what incapacity it produces, 10 — debtor may enter into transactions, 10, 187 — and carry on business, 10, 187 — even with creditors, JO, 187 — which are valid though they lead to creditor's pleading compensation, &c. , 10, 1 87- fulfilm ent of obligations, 1 0, J 85 — payment of debts, 10, 1 85 — obliga- tions ad facia ^)r(ssiant?a,10,185 — if debts future or contingent, 10, 185 — if imple- ment specific, 10, 18.5 — if obligation to grant security, 10, 185 — especially where contingent or indefinite, &o., 11, 185 — fraud not necessary, 11, 187 — pursuer must be a prior creditor or trustee for prior creditors, 11, 184 — interest of challenging creditors, 11, 184— defender a creditor, II, 186 — receiver qua credi- tor, 11, 186_date of deed, 11, 186— 498 INDEX. NOTOUB BANKBDPTCT— Continued. completion of deed is its date, 11, 186 — challenge by action or exception, 11, 185 — foi-m of action, 11, 185 — ^jurisdic- tion, 11, 184 — effect of reduction to pur- suer, 11, 187— to defender, 11, 12, 187. , efi'eots of, on pre- ferences hy diligence, 11, 217 — by arrest- ments, 11, 217— by poinding, 11, 217 — equalises same within sixty days, 11, 217 — mode of ranking, 11, 217. , effects of, on debt- or, subjects him to sequestration, 13, 218 — with other requisites, 13, 218— where a company, 13, 218 — must be applied for within four months, 13, 222. Nova deliia, under Act 1621, 7, 181 — under Act 169C, 10, 186. Oath includes affirmation, 227 — requisites of o.ith for petitioning, for sequestra- tion, or concun-ing, 64 — for voting and acting, 65 — for ranking, 68 — production of oath for voting, 247 — also for ranking 247, 301 — and petitioning, 226 — no sepa- rate claim needed except for preference, 248 — where claim found bad cannot be founded on, 70 — how taken when credi- tor within United Kingdom, 227 — when abroad, 230 — in the case of a deceased debtor, 230 — oaths produced at meeting for election of trustee to be marked, 2t>3 — also when lodged with trustee, 252 — not to supersede legal evidence, 256 — loss of oath how supplied, 248 — separate oaths, 248 — date of oath, 229 — place, 229 — magistrate, 227 — of what place, 227 — party to depone, 226, 227— where creditor a corporation, 231 — or under incapacity, 231 — oath of verity, 228— of credulity, 228, 230, 231— declaration in lieu of oath, 226 — sum must be definite, 228 — securities to be stated, 227 — to be valued and deducted for voting, 256 — also for ranking, 260 — co-obligants to be stated, 227— claims against them to be valued and deducted for voting, 257 — also against company and partners for voting, 258 — also against company for ranking, 261 — valuation may be cor- rected by a new oath, 259 — mode of stating balance, 253 — oath for ranking must state where vouchers are, if same not produced, 251 — signature of oath, 229 — marginal notes, 229 — erasures, 229 — interlineations and deletions, 229 — after o,ath emitted cannot be altered, 226 — correction of oath, 255 — it must be on oath, 253 — adjudication upon oaths by trustee, 304'. Oath, reference to, in questions of voting and ranking incompetent, 70 — exception to this rule, 70. Obiigants must be specified in oath, 227 — valuation of obiigants, 267 — securities from obiigants to be valued, 257 — claim on estate of a partner or company, 268, 2C1 — assignation may be demanded, 259 — correction of valuation, 259 — co-obli- gauts not discharged by creditor voting or acting in sequestration or drawing dividend, 255. Objections, note of, nde Trustee. Officers of CoTui;, 169 — power to act in their offices, 169, 243— citation under petition for sequestration, 169, 231 — where debtor is a company, 169, 232 — inducise, 170, 233 — apprehension of bankrupt for examination, &c., 170, 281 — where bankrupt is out of Scotland, 170, 282— warrant for apprehension of third parties for examination, 171, 282 — warrants for diligence, 171, 338 — exe- cutions in printing or writing, 171, 338 — citation without witnesses, 171, 338. Ordinary, Lord, meaning of expression " Lord Ordinary," 212. Outstanding debts, sale of, 310. Overt act of insolvency, 1. Partners, meaning of term "partner,"' 213 — his residence or dwelling-house a requisite for sequestration of company, 218 — personal protection to partner, 244 — may offer composition, 310, 314 — bond of caution to be executed by, 312 — dis- charge to partners, 316 — not to com- pany, 316 — partner may acquire com- pany's assets, 317— latent paitnere to disclose themselves, 286 — claim on part- ner's estate, 258, 261. Pay of bankrupt attach.ible, 324. Payment of debt does not take away ,effeot3 of notour bankruptcy, 216 — it prevents sequestration, 235 — where por- tion of debt remains, 222. Peers, how rendered notour bankriipt, 215 — may be sequestrated, 218 — peerage not forfeited, 63. Penal interest, vide Interest. Pensions attachable, 324. Personal protection to bankrupt, granting of, 244 — interim protection by Court, 244 — Gazette notice of same, 244 — awarding of protection by creditors, 244 — renewal of, 273 — how applied for, 273 — where same not applied foi', 273 — objections to petition, 273 — no effect against fugm warrant or decree ad fac- Zwm;?7-ffis(a?i(^«.m or criminal warrant, 245. Petition and complaint against trustee, 335 — at whose instance competent, 335 , — procedm-e under, 334. Poinder, his right in estate generally, 87 — his right in subject of security, 90. Poinding, personal, a requisite of notour bankruptcy, 9 — also poinding and sale, 9 — equalisation of poindings, 1"2 — ex- penses of same, 12 — poinding within sixty days prior to sequestration not effectual, 295— and effects or proceeds to be made forthcoming to trustee, 295 — sequestration is equivalent to poind- ing, 295 — expenses bona fide incurred to be allowed, 296 — trastee takes poinded INDEX. 499 funds, subject to a claim of preference in the ranking, 101. Poinding of the ground, effect of, in competition with trustee, 89— trustee's right equivalent to poinding of ground, Poor-rates, preference for, 305— claim to be made, 87. Post- letters to bankrupt may be opened by trustee in presence of Sheriff, 339. Postponement of dividends, 309. Preferable debts, 300, 301, 305— claims must be lodged, S7. Preferable creditors, vide Creditors, Heri- table creditor. Prefei-ences reducible on the ground of in- solvency, 6, 7 — of notour bankruptcy, 10, VI — preferences under private com- position-settlement, 16, 17, 18— prefer- ences under trust-deeds, 20, 23, 25 — preferences challengeable by action or exception, 216 — in Court of Session or Sheriff Court, 216, 353 — preferences challengeable notwithstanding deed of arrangement, 240 — preferences in case of a deceased debtor, 296 — preferences after sequestration void, 297 — bankrupt in offer of composition may stipulate for right to reduce preferences, 317 — assignation of same, 317 — preferences for consenting to bajikrupt's discharge void, 327 — procedure as to same, 327 ; mde Insolvency, Notour bankruptcy. Premises of bankrupt to be locked up, 224. Prescription is interrupted by lodging claim or voting, 296-— prescribed debt not a good voucher, 250. Preservation of estate, 223 — when two or more sequestrations, 225 ; vide Judicial factor. Preses to be elected and sign minutes at first meeting, 263 — at other meetings, 289. Presumptions under 1621 competent to trustee, 216 — nature of presumptions, 179, 217. Printing of deliverances, &c., allowable, 338. Prior creditors, their right to reduce pre- ferences, vide Insolvency, Notour bank- ruptcy. Privileged persons, 215. Process, forms of, 243 — inventory, 243. Production of vouchers, vide Vouchers. Proof, vide Evidence. Property, meaning of word "property," 212. Protection, vide Personal protection. Pupils, how rendered notour bankrupt, 214, 215 — may be sequestrated, 219 — who makes oath for them, 231 . a Quaker's declaration, 226. Qualification of creditors to petition, vote, and rank, 64, 65, 68, vide Credi- tors. Eadical right to estate in bankrupt, 234. Ranking, meaning of, 304— qualifications of creditors for ranking, 68 — oath to be produced, 6S— time for doing so, 68 — accounts and vouchors to be lodged, 68— natm-e of same, 251 — for equalising dividend, 69— when creditor abroad, 69— deduction of securities, 69 —valuation of claim on company estate, 69— accounts to be audited, 303— divi- dend to be fixed, 303— trustee adjudi- cates on claims, 304— mode of ranking, 304— of ordinary creditors, 304— or pre- ferable, 304 — or contingent creditors, 304— conditional ranking, 304 — where two bankruptcies, 293, 304— trustee may call for evidence, 304 — and examine parties on oath, 304 — no double ranking, 261 — ranking on different estates, 261 — payments after bankruptcy, 261 — rank- ing is according to law of Scotland, 247, 262— ranking on heritable estate, 299 — notices to creditors, 305 — appeals, 306 — scheme of division, 307 — payment of dividends, 307 — consignation, 307 — second dividend, 308— subsequent divi- dends, 308 — acceleration, 309 — post- ponement, 309 — alteration, 310. Realisation of estate, vide Trustee's du- ties. Recall of judicial factor's appointment, &c.,224. Recall of sequestration, 44— parties who may apply, 44, 236— within what period, 44, 236— objections, 237— grounds of re- call, 238 — where an English or Irish debtor, 45, 365 — sequestration goes on although recall applied for, 46, 239 — sisting of other creditors, 239 — differ- ence of recall from review, 237. Recall of concurrence to bankrupt's peti- tion for discharge, 322. Recall of mandate to vote disqualifies commissioner, 272. Reckoning of time, 213. Recording of sasine is date of deed, 214. Recording of recall of sequestrations, 237, 356 — also deed of arrangement, 242 — re- cording of abbreviate of sequestrations, 246— recording of abbreviate of trustee's confirmation, 274 — recording of abbre- viate of bankrupt's discharge, 352 — re- cording of petition against bankrupt's heir, 294— recording of bond for compo- sition, 316. Recovery of estate, vide Trustee's duties. Reductions of gratuitous alienations by common law, 3— under Act 1621, 4— re- duction of preferences by common law, 6— under Act 1621, 7 — vide Insolvency — reduction of preferences under Act 1696, 10 — vide Notour bankruptcy — reduction of extrajudicial composition contract, 15 — also preferences under such contract by creditors, 16 — also by cautioner, 11— vide Composition con- tract — reduction of trust-deed, 20 — 500 INDEX. reduction of gratuitous alienations or preferences by creditors, 23, 24, 25 — vide Trust-deed — reduction may be by action or exception, 216 -effect of sam9, 216 — reduction by trustee, 216 — reduc- tion of banlcrupt's discharge, 312, 316, 326 — reduction of creditor's resolutions, 334. Reference to oath, vide Oath. Eegister of sequestrations to be kept by accountant, 329. Eegistration fixes date of deed, 214. Registration, vide Recording. Reinvestiture of bankrupt, 57 — right to reduce preferences, 57 —reinvestiture in debts not contained in state of affairs, 275 — but may lead to reduction of dis- charge, 316. Remit of sequestration, 224 — where two or more sequestrations, 224. Rent, vide Landlord. Report by trustee to second meeting, 287 — on offer of composition, 312, 314— report on bankrupt's conduct by trustee, 321 — report of resolution as to deed of ar- rangement, 240 — report of resolution that bankiTipt only entitled to cessio, 333 — report by accountant as to conduct of trustees, &c. , 330 — report by commis- sioner to creditors, 279. Repositories to be locked up, 224. Residence, how far necessary for seques- tration, 218. Resolutions of creditors appealable, 333 — procedure under same, 334 — review of merits of same, 335 — reduction of reso- lutions, 334. Retiring to Sanctuary, vide Sanctuary. Review under cesssio where liberation or protection granted, 29 —reclaiming note against Lord Ordinary's judgment, 31, 39 — appeal to House of Lords, 31, 39 — recall of Sheriff's warrant of protection or liberation, 36 — review of Sheriff- Substitute's judgment, 37 — review of Sheriff "s judgment, 38. Review itiider sequestrations^ by Court of Session, of creditor's resolutions and de- liverances of tnistee or commissioners, 129 — where it has appellate jurisdiction, 129 — by Sheriff Court, 146 — where Sheriff has appellate jurisdiction, 146 — time and mode of appealing, 334 — pro- cedure under appeals, 334 — disposal of same, 334 — right of appeal may be waived, 334— form of appeal, 334, 335— review of resolutions on merits, 335 — review of judgment by Sheriff, 336 — by Lord Ordinary, 337 — appeal to House of Lords, 337 — regulation of interim pos- session, 337 — review of trustee's judg- ment on claims, 306 — time and mode of appealing, 306 — expenses, 306. Revival of debt under private composition contract, 15, 17^not where discharge absolute, 15, 317. Revival of debt after discharge in seques- tration, 316— debt not revived by failure to pay composition, 317. Revival of sequestration, does not take place though composition unpaid, 317. S Sale under poinding or sequestration for rent, is a requisite of notour bankruptcy, 214 — sale of heritable estates under sequestration, 276, 297 — sale of move- able estate, 277 — by heritable creditors, 276, 297— by trustee, 276, 298— who may purchase, 300 — private sale, 299 ; vide Judicial sale. Trustee's powers. Sanctuary, retreat to, with charge, pro- duces notour bankruptcy, 214— retir- ing for twenty-four hours same effect, 214 — evidence of retreat, 215. Sasine, recording of, fixes date of deed, 214. Scheme of division of heritable estate, 299 — of general estate, 307. Sealing up of bankrupt's books and papers, 224. Search, execution of, proves notour bank- ruptcy, 215. Security, meaning of word "security," 212 — must be set forth in oath, 227 — what are securities, 267 — valuation and deduction of, for voting, 256 — and for ranking, 260 — but not under composi- tion contract, 311 — no matter although security valueless, 257 — ^mode of valu- ing, 258 — security to be conveyed to trustee on paying specified value, 259, 260 — or reserved to creditor, 261 — valuation may be corrected, 259 — secu- rity must be objected to before offer carried, 319; vide Gsmtion. Securities, estates vested in trustee sub- ject to, 290. Sedenint-book to be kept by tru.stee, 278 — how far to be patent to oreditoi'S, 279 — to be transmitted to accountant, 327 — presumed to be in trustee's hands, 279 — where same lost, 279 — evidence of same, 279. Separatist, declaration by, 226. Sequestration, requisites of, 41 — party must be a debtor, 41, 218 — concuri'ence of creditors, 41, 42, 221 — when notour bankruptcy requisite, 41, 218 — in case of a deceased debtor mandatory may petition, 42, 219— jurisdiction, 42, 218 — productions with petition, 42, 225 — petition to Court of Session or Sheriff, 42, 224 — to what Sheriff, 42, 224 — requisites of petition, 42, 225 — sisting of other creditors, 239 — procedure if debtor concur, 42, 233 — if he do not concur, or if dead, 43, 231— opposition, 234, 235— objections, 235 — case of a company, 43, 232 — diet of appearance, 43, 235 — date of sequestration, 44, 243— process does not fall asleep, 51, 243 — remit, 224 — not subject to review, but to recall, 236 — clerks to sequestration, 243 — registra- tion of abbreviate, 246 — Gazette notice, 246 — error or omission to insert same, 247 — copy of proceedings to be sent to INDEX. 50] SherifE Clerk, 243 — expenses of seques- tration, 2i2 — to be taxed and paid, 242 — when petitions may be presented, and wlien sequestration awarded, 242 — if awarded by two or more Sheriffs, 225 — effect of two sequestrations, 293— Court of Session may sequestrate though She- riff refuses, 225 ; vide Debtor, Deceased debtor. Sequestration, temninatitm of, 44 — vide Re- call, Deed of Arrangement, Composi- tion contract. Bankrupt's discharge. Bankrupt's death, Cessio. , midence of, 52 — within Scotland, 51 — in rest of British domin- ions, 52, 337. Servants' wages, preference for, 301 — ^must be claimed, 87. Service, vide Citation. Sheriff, meaning of word "sheriff," 212 — no appeal from Substitute to Sheriff, 336. Sheriff Clerk, 167— Sheriff Clerk of each county is clerk to sequestrations within it, 167, 243 — power to act in sequestra- tions, 167, 243 — duties at election of trustee, 167, 263 — custody of oaths after meeting for election of trustee, 168, 266 — bond of caution for trustee, 168, 268 — trustee's act and warrant, 168, 269 — procedure on devolution or election of new trustee, 168, 270 — recording of bond for composition, 168, 315, 319 — extract of discharge on composition, 168, 315, 319 — abbreviates to be issued, 168, 352 — extract of discharge without composition, 168, 323 — extract of trus- tee's discharge, 169, 326 — annual return to accountant, 169, 329— Sheriff Clerk's fees, 347. Shebitf Court may entertain reductions, 216, 353 — by action or exception, 216, 353— jurisdiction in cessios, 27 — proced- ure in same, 32 ; vide Cessio. , appellate jurisdiction of, in sequestrations, 146 — trustee's valua- tion of contingent claim, 146, 253 — his valuation of annuity, 146, 254 — trustee's deliverances on claims, 146, 305, 308 — audit by commissioners, &c., 147, 318 — resolutions of creditors and deliverances by trustee and commissioners, 147, 333. -, original jurisdiction of, in sequestrations, 147 — same grounds of jurisdiction as in case of Court of Ses- sion, 147— additional grounds, 148, 224. -, functions of, and forms of procedure in sequestrations, 148 — petition for sequestration by a cre- ditor within four months of notour bankruptcy, 148, 222 — when debtor dead, 148, 222 — measures for pre- servation of estate, 148, 223— secur- ing of banknipt's premises, &o., 148, 224 — Sheriff has power to award seques- Jtration, 149, 224 - remit of later seques- trations where more than one awarded, 149, 224 — remit of sequestration from Court of Session, 149, 225— each Sheriff takes measures for preserving estate within his jurisdiction, 149, 225 — war- rant for citation, &c., where petition for sequestration without debtor's con- sent, 149, 231 — sequestration of estates of company and partners may be jointly or separately, 150, 233 — induoise of cita- tion, 150, 233— Gazette notice, 150, 233 — awarding of sequestration when with debtor's consent, 150, 233— where with- out consent, 151, 235 — sisting of credi- tors in law proceedings, 151, 239 — it debtor dies, sequestration goes on, 151, 239 — report of resolution to carry through deed of arrangement, 151, 240 — interim management, 151, 240 — pro- duction of deed of arrangement, 151, 240 — if deed of arrangement not pro- duced, &c., sequestration proceeds, 151, 242 — appUcation for personal protection, 152, 244— liberation of bankrupt, 152, 2-14— correction of oaths, 152, 262— ap- plication to have a contingent claim valued, 153, 253 — application for valua- tion of an annuity, 153, 253 — effect of oaths, 153, 256 -appointment of meeting for election of trustee, 153, 262— attend- ance of Sheriff at meeting, 153, 263 — procedure where Sheriff present, 153, 266 — where not present, 154, 266 — ^judg- ment to be given without delay, 154, 267 — confirmation of election of trustee, 154, 269 — application for order to hold meeting for election of new trustee, &c., 154, 270 — declaration of election of commissioners, 154, 271 — application for renewal of protection, 154, 273 — ap- plication to compel bankrupt to execute deeds, &c., 155, 275 — dismissal of trus- tee for retention of monies, 155, 278 — petition against factor, &c., for account- ing, 155, 279 — Sheriff fixes day of bank- nipt's examination, &c., 155, 280 — ap- prehension of bankrupt for examination, &c., 155, 281 — examination of third parties, 156, 282 — bankrupt and others must answer all lawful questions, 156, 283 — mode of examination, 157, 284 — warrant of commitment for refusal, 157, 285 — application by latent partner of a company, 157, 286 — oath by bankrupt, 157, 286— petition for accounting against heritable creditor, 158, 297 — petition for acceleration of dividends, 158, 309 — special application for alteration of divi- dends, 158, 310 — approval of composi- tion-contract, 158, 312, 314, 319— decla- ration by bankrupt, 158, 315 — discharge, 159, 315 — commissioners audit the trus- tee's accounts prior to discharge, 159, 318— trustee and cautioner liable to ac- counting, notwithstanding exoneration, 1 59, 318 — petition by bankrupt for dis- charge without composition, 159, 320 — oath by bankrupt, and discharge by Sheriff, 161, 323 — order as to pension, &c., being paid to trustee, 161, 324 — proceedings against creditor who has obtained preference, &o,, 161, 325— ap- 502 INDEX. Sheriff Gotjut— Continued. plication for trustee's discharge, 162, 326 — report of resolution by creditors that banlirupt only to apply for decree of cessio, 162, 333— regulation of interim possession, &c., 163, 337 — order as to bankrupt's lettei's, 163, 339. Ships, acquisition of, by trustee, or shares therein, 97 — how right completed, 97 — in competition with other claimants, 99. Shop to be locked up, 224. Sist of sequestration, 240. Sisting of creditors in legal proceedings, 239. Stamp duty not chargeable against estate, S40. Stoppage in transitu, 2, 3. Submissions by trustee, 338. Subsequent acquisitions, 292 — how at- tached, 292. Successors, meaning of word "successors," 212 — successors to be cited, 231 — may renounce or concur, 234 — must denude, 294 — may offer composition, 310, 314 — and make declaration, 315 — and obtain discharge, 317 — but not reinvestituro, 317. Superior not affected by sequestration, 290. Supreme Courts, see Court of Session. Surplus of estate to be paid to bankrupt, 328. Table of fees to be made, 340. Taxes, vide Crown. Time, how computed, 213. Title to estate, trustee's, vide Trustee's rights. Trusts latent in question with trustee, 100. Trust-deed, constitution of trust, 19 — essential clauses in deed, 19 — condi- tional clauses, 19 — completion of trus- tee's right, 19 — accession, 19 — termina- tion of trust, 20 — by failure of condi- tions, 20 — does not terminate by death, &c., of trustee, 20 — nor by non-accession, 20— deed reducible by Act 1621, 20— by Act 1696, 20— at common-law, 20 — may be superseded by sequestration, 20 — terminated by implement, 20 — evidence of trast and accession, 21 — rights and powers of truster during subsistence of trust, 21 — on termination, 22 — rights and powers of creditors, 22 — of trustee, 23 — duties and liabilities of truster, 24 — of creditors, 24 — of tnistee, 24 — law procedure against debtor, 25 — against creditors, 25 — against trustee, 25. Trustee under trust-deed cannot act as law-agent, and charge fees, 23; vide Trust-deed. Trustee under cessio, 195 — bringing trustee to account, 195 — supervision of accountant, 332 — duties of trustee, 333. Trustee under sequestration, election of, 91 — may not be elected where deed of ari'angement resolved on, 91, 240 — mode of election, 91, 263 — procedure by Sheriff if present at meeting, 92, 266 — procedure by preses if Sheriff not pre- sent, 92, 266 — competition for office, 92, 266 — objections to candidate, 263, 264, 265 — personal objections to be stated at meeting, 266 — declinature by candidate, 265 — notes of objections, 266 ^requisites of same, 267 — disposal of same by Sheriff, 266- expenses of com- petition, 92, 352— declaration of elec- tion by Sheriff, 93, 266— security by trustee, 93, 268 — bond of caution, 93, 268— confirmation by Sheriff, 93, 269— Sheriff's dehverances final, 93, 267,269 — election of new trustee, or devolution on next trustee, 94, 270 — evidence of trus- tee's appointment, 95, 269. removal or resignation of. 93 — creditors may accept resignation! 93, 270 — creditors may remove trustee at meeting, 93, 270— petition for his re- moval, 94, 270 — he loses office by re- maining abroad three months, ^\, 270 — dismissal for keeping up funds, 94, 278 — also for failing to make annual return, 94, 329— devolution on next trustee, or election of new trustee, 94, 270- -pro- ceedings for that purpose, 94, 270. '■ , discharge of, 94 — under com- position-contract, 94, 318 — application for discharge when estate wound up, 95, 326 — proceedings for that purpose, 95, 326, 327. , rights of, 96— his rights of property, 96 — nature of right, 96 — ex- tent of same, 96 — where bankrupt's title registered, 96 — where personal, 96— where property moveable, 96 — trus- tee takes liabilities as well as rights, 96 — how right completed, 97 — where right moveable, 97 — or heritable, 97 — case of shipping property, 97 — patents, 97 — copyrights, 98 — property in Her Majes- ty's other dominions, 98 — in foreign countries, 98— subsequent acquisitions, 98 — trustee''s right in competition with oilier rights, 98-— with a disposition, 98 — adjudication, 98 — inhibition, 99 — assig- nation to a lease, 99 — vendition of ship- ping property, 99 — assignee of patents 99-M3ihgeuce, 99 — assignation of a debt, 100— with party claiming goods, 100 — with a purchaser of goods, 100 — a pur- chaser after sequestration, 100 — ^latent trusts and claims, ] 00 — lien of law-agent, 101 — trustee's right of management whei'e no right of nroperti/, 101 — in the case of a trust-deed, 101 — or executry, 101 — or heritable creditor, 101 — or arrest- ment, 101 — Enghsh commission of bank- ruptcy, 101 — or where property vested in bankrupt qtiu executor, 101. ■, poioers of, 102 — position of tnistee, 102 — his power of binding estate and the creditors, 102 — may set aside preferences, &c., 102, 216 — may con- sent to bankrupt making a new applica- tion for liberation, 102, 244 — no relief against creditors for expenses, &c. ,102, INDEX. 503 TbUSTEE under a sequestration— Co!J- tinued. ^15Q — may demEind assignation of securi- ties from creditors, 103, 258, 260 — may recover estate, and sue, 103, 269 — now trustee has same power, 103, 270 — may apply for special allowance to banlcrupt, 103, 274: — may apply to Sherifif to com- pel bankrupt to give assistance, 103, 275 — also for re-examination of bank- rupt, 103, 281 — and apprehension of bankrupt, 103, 282 — and examination of other parties, 104, 282 — in open coxirt, ] 04, 284 — may put all lawful questions, 104, 285— may call meetings, 104, 288— may examine bankrupt as to new ac- quisitions, 104, 292 — and complete titles, and grant conveyances, 104, 2D4 — may apply for estate where suc- cessor has made up title, 104, 294 — may concur in sale by heritable creditor, 104, 297 — may sell heritable estate, 104, 298— without any concurrence, 104, 298 — maj- with concurrence carry through sale by private bargain, 104, 299 — may apply for warrant for payment of pre- ferable claims, 104, 299 — cannot pre- vent poinding of grounds, &c., 105, 299 — cannot purchase estate, 105, 300 — may examine parties on oath when ad- judicating on claims, 105, 304 — may apply for alteration of periods for divi- dends, 105, 309 — may require bankrupt to take oath, 105, 315 —may appeal against commissioner's deliverance, 105, 318 — may report on the bankinipt's con- duct, 105, 321 — may retain creditor's dividend, 105, 325 — may apply to have bankrupt's dischai^e annulled, 105, 326 — right of appeal, 105 — right to com- pound, &c., 105,338 — may raise crimi- nal prosecution against party guilty of falsehood, 105, 338— may have bank- rupt's letters opened, 105, 339 — power to execute general duties, 106. , dutus of, 106 — to pay ex- penses of obtaining sequestration, 106, 242 — to apply for personal protection, 1 06, 244 — to receive productions by cre- ditors, 106, 247 — to make entry in sede- rmit-book, and retura productions to creditors, 106, 252— to set apart divi- dend where creditor not in possession of vouchers, 106, 251 — to correct claims by creditors, 106, 252 — to value contin- gent claims, 1 06, 253 — to value animity, 106, 254- -to value claim on company estate, and deduct from claim on part- ner's estate, 107, 261 — duties of new trustee, 107, 270— to record recall of mandates, and call meeting for election of new commissioner, 107, 272— to apply for renewal of protection, 107, 273 — to have abbreviate recorded, 107, 274 — to take possession of estate and documents, 107, 275 — to make tip inventory and valuation, 107, 275— to send copies to accountant, 107, 275— to receive and engross bankrupt's state of affairs, 107, 275 — to manage, recover, and realise estate, 108, 276 — to lodge money in certain banks, &o., 108, "276 — to lodge all sums above £50, 108, 278 — to keep sederunt-book, 108, 278— to keep ac- counts, 108, 278 — to send copies to ac- countant, 108, 278— to make sederunt- book and accounts patent, 108, 278 — to apply to Sheriff to fix bankrupt's exa- mination, 108, 280 — to publish Gazette notice, and send letters to creditors, ] 08, "280 — to pay allowances to witnesses, 109, 28"2 — to prepare report to second meeting, &c., 109, "287 — to call meetings, 109, 288 — to send notices to creditors under £20 if required, 109, 288— to se- ciu"e subsequent acquisitions, 109, 292 — to record abbreviate against succes- . sors, 109, 295— to allow expenses to arrester or poinder, 110, 296 — to make up scheme of division among heritable creditors, 110, 299 — to retain dividend for foreign creditor when too late, 110, 303 — to make up state for dividend, 110, 303 — to adjudicate on claims, and make up lists of same, 110, 304 — to give Gazette notice of dividend. 111, 305- - to seud letters to creditors. 111, 307 — to make up scheme of division, and send notices. 111, 307 — to pay or consign dividends. 111, 307 — similiar procedure preparatory to second dividend. 111, 308 — to pay or consign dividends, 112, 303 — same procedure as to subsequent dividends, 11"2, 308 — to apply for ac- celeration of dividends, ir2, 309 — to give Gazette notice of postponement, 112, 309 — to call meeting for finally winding up estate, 112, 310— to sell estate, &c., by auction, 11"2, 310 — to give Gazette notice of offer of com- position, and send letters, 113, 311 — to report acceptance to Sheriff, 113, 312 — similar procedure if offer made at sub- sequent meetings, 113, 314 — to proceed with duties as if no offer, 114, 318 — ■ procedure in case of a renewed offer, 114, 319 — to prepare and deliver report to bankrupt as to his conduct, 114, 321 — to distribute preferences recovered, 114, 325 — to call meeting for his own discharge, 114, 326 — to send sederunt- book to accountant, and consign un- claimed dividends, 115, 327 — cannot pay law costs without taxation, 115, 328 — to pay surplus to bankrupt, 115, 328 — to make annual return to Sheriff Clerk, 115, 329 — to report resolution that debtor only entitled to cessio, 115, 333. , liahilities of, 115 — not liable in bankrupt's debts, 115 — liable to per- form statutory duties, 116 — censure, 116 — removal, 116 — penalties, 116— imple- ment, 116 — damages for non-implement, 116 — liability for his own acts, 116 — lawsuits, 116 — adoption of contract, 116 — intromissions, 116 — damages for wrongs, 116 — where trustee enters inco new contract, 117 — he cannot in such 504 INDEX. Tkustee under a sequestration — Core- cases plead want of funds, 117 — liaWUy for former trustee, 117— Ms relief, 117— form of decemiture against trustee, 117. — ^-^ , law procednre against^ 117 — pe- tition for censure by a creditor or the accountant, 117 — upon report of ac- countant, 117 — one-fourth of creditors may raise petition, 118 — dismissal on petition for retaining funds, 118— com- missioners inflict penalty for retention, 118 — petition for an accounting, 118 — notwithstanding -exoneration under com- position-contract, 118 — petition to be serred, 118 — hearing, 118 — minutes, 119 — judgment, 119 — ordinary proce- dure, 119 — ^letters of homing, 119. mandatories may vote, 259-where debt acquired after sequestration, 26U— rote by wife, or trustee for her, 260— where creditor's claim under £20, 288. Voting, vouchers tor, 247— nature of same, 249— valuation and deduction of securi- ties for voting, 256— and co-obligants and partners, ^57, 2.58— voting not com- petent to assignee after date of seques- tration, 21)0. Vouchers necessary to prove debt, 247 — nature of vouchers for petitioning, 248 — of vouchers for voting, 249— of vouchers for ranking, 261 — production of vouch- ers, 247 — effect of non-production, 251 — ^if vouchers not in creditor'spossession, how he is to act, 251 — vouchers to be returned to creditor if required, 252. TJ Unclaimed dividends to be lodged in bank, 327— mode of uplifting same, 327. Valuing of contingent claims, 253 — of annuities, 254 ; vide Security. Vesting of estate in creditors, vide Credi- tor's rights— and in trustee, vide Trus- tee's rights. Vote, meaning of word "vote," 212 — qualifications of creditors to vote, 65 — Wages of workmen and others preferable, 301. Wand of peace is not necessary' for appre- hension, 214. Winding up of estate by sale, 310— also by deed qf arrangement, 239— by composi- tion-contract, 315. Wives, how rendered notour bankrupt, 215 — may be sequestrated, 219— wife of bankrupt cannot vote for trustee, 260 — cannot plead privilege as to confidential communications, 284. THE END. PRISIED BY WILLIAM BLACKWOOD AND SONS, EDINBURGH. 1