tbarge the bankrupt from his liabilities. Since the year 1772 there has been a succession of sequestration acts, of which the latest was passed on the 17th of August, 1839 (2 & 3 Vict. c. 42). Its main features of distinction from the immediately pre vious act (54 Geo. III. c. 137) are these : It enlarges the class of persons who may be subjected to the process : instead of wing a process of which every step roust be taken in the supreme court, the sequestration, being awarded there, is re mitted to the sheriff's local court, where the routine business proceeds under the sanction of the sheriff, who has an au thority bearing a general resemblance to that of the commissioner in England. The winding up of the proceedings and the taking the process out of court require the sanction of the supreme judi cature. Sequestration reduces the interest which will qualify a creditor to sue for the application of the act, and abbreviates the proceedings.
How a man becomes per son who is insolvent is made notour bankrupt, by being imprisoned either ac cording to the old form of horning and caption, or in terms of the 1 & 2 Vict. c. 114, or by such writ of imprisonment having been issued against him, which he seeks to defeat by taking sanctuary within the precincts of the Palace of fleeing, absconding, or forcibly defending his person. If the individual be not liable to imprison ment, from his residing in the sane ivary, being abroad, having privilege of parliament, &c., the execution against kim of the charge which precedes the warrant of imprisonment, if accompanied by an arrestment of his goods not loosed within fifteen days, or by a poinding of his moveable goods, or by an adjudication of his real property, will make him bank rupt. A person whose estate is seques trated, if not previously bankrupt, becomes so from the date of the first judicial deliverance in the sequestration. The principal effect of bankruptcy, is to strike at alienations to creditors within sixty days before it, and to equalize at tachments against the estate taken within sixty days before and four months after it.
Who may be classes of persons coming within the 2 & 3 Vict. c. 41, are enumerated as any debtor " who is or has been a merchant, trader, manu facturer, banker, broker, warehouseman, wharfinger, underwriter, artificer, packer, builder, carpenter, shipwright, innkeeper, hotel-keeper, stable-keeper, coach-con tractor, cattle-dealer, grain-dealer, coal dealer, fish-dealer, lime-burner, printer, dyer, bleacher, fuller, calenderer, and ge nerally any debtor who seeks or has sought his living or a material part thereof, for himself, or in partnership with another, or as agent or factor for others, by using the trade of merchandise, by way of bar gains, exchange, barter, commission, or consignment, or by buying and selling, or by buying and letting for hire, or by the workmanship or manufacture of goods or commodities :" (§ 5) unless the debtor con sent to the sequestration, he must have been bankrupt, or must have been sixty days in sanctuary within the space of a year, and must have transacted business in Scotland, and must within the prece ding year have resided or had a dwelling house in Scotland. The estates of a de ceased debtor may under certain restric tions be sequestrated though he was not bankrupt and did not come within the above classification.
Application and appli cation for sequestration is by petition to the court of session. It may be either by the debtor with concurrence of cre ditors, or by the latter. The persons who may petition or concur are—any one cre ditor to the extent of 50/. ; any two to the extent of 701. ; and any three or more to the extent of 1001. Where the peti tion is with the debtor's consent, seques tration is immediately awarded.. Where it is required solely at the instance of the creditors, measures are taken for citing those concerned, and for procuring evi dence of the statements on which the pe tition proceeds. When sequestration is
awarded, the deliverance remits the pro cess to the sheriff of the county, and ap points the times and place of certain meetings for arranging the management of the estate. In all questions under the act, the sequestration is held to commence with the date of the first judicial deliver ance to whatever effect, on the application; and the effect of the process in attaching the funds and neutralising the operations of individual creditors operates by rela tion from that date. The judgment awarding sequestration is not subject to review, but it may be recalled at the in stance of the debtor, and on his showing that it should not have been awarded ; and the court may on equitable principles, and for the better management of the estate, recall the sequestration, if nine tenths of the creditors apply for a recall.
their first meeting the creditors either choose an " Interim Factor," or devolve his duties on the sheriff clerk of the county. His func tions are confined to the custody and pre servation of the estate. He takes possession of the books, documents, and effects, and lodges the money in bank. He has no administrative control, and cannot con vert the estate into money, or otherwise attempt to increase its value. The person on whom the estate is finally devolved, the trustee, is elected by a majority in value of the qualified creditors present at a meeting judicially appointed to take place not less than four and not more than six weeks after the date of the awarding of the sequestration. The trustee stands in place of the chosen as signee in England. In Scotland there is no person whose office corresponds with that of the official assignee, but a com mittee of three creditors, called commis sioners, is appointed at the same meeting and in the same manner as the trustee, whose duty it is to superintend the proceed ings of the trustee, audit his accounts, fix his remuneration, decide on the payment of dividends, &c. Relations of the bank rapt, and persons interested in the estate otherwise than as simple creditors, are disqualified as trustees and commis sioners. The trustee has the duty of managing and recovering the estate, and converting it into money. He is the legal representative of the body of creditors, and in his person are vested all rights of action and others in relation to the estate of which the debtor is divested by the bankruptcy. He is bound to lodge money as it is received, in bank, under certain statutary regulations fortified by penalties. The trustee is amenable to the court of session and to the sheriff for his conduct. He may be removed by a ma jority in number and value of the cre ditors, and one-fourth of the creditors in value may apply for his judicial removal, showing cause. The trustee's title to act commences at the time when his election is judicially confirmed. In the case of a disputed election, the question may be carried from the court of the sheriff, who has in the first place the judicial sanction of the election to the court of session. The judicial proceedings vesting the es tate are entered in the registers of real property in Scotland, and at his confirma tion all the real and personal property of the bankrupt within the British em pire vests in the trustee, and is considered as having vested in him from the date of the sequestration. A copy of the act and warrant of the trustee's confirmation, certified by the clerk of the bill chamber in the court of session, is declared by du statute to be sufficient evidence of th, trustee's title, to enable him to sue in any court in the British dominions.