Such are the persons liable to sequestration. It is next to be considered, from what acts bankruptcy is inferred, so as to authorise this process. Where the debtor himself concurs, no proof of bankruptcy is necessary. Where he does not concur, the credi tor must shew that certain steps of diligence have been taken against him. These are, That the debt or shall be under 'diligence by horning and caption for debt, and shall either, in virtue thereof, be im prisoned, or retire to a sanctuary, or fly or abscond for his personal safety, or defend his person by force; or being out of Scotland, and not liable to be im prisoned, by reason of privilege or personal protec tion, shall be under diligence by charge of horning, attended with arrestment not loosed, or poinding of any part of his moveables, or decree of adjudication of any part of his estate, for payment or security of debt, at the instance of any creditor.
When a person comes under the description of the statute, and has been rendered bankrupt by the use of any of the diligence just mentioned, any one cre ditor, to the amount of 4100, or two creditors to the amount of 4150, or three or more to the amount of 4200, either with or without the concurrence of 'the bankrupt, may apply by summary petition to the 'court of session for a sequestration. Where the bankrupt concurs, sequestration is immediately award ed ; where he does not concur, a warrant is granted 'for serving the petition upon him, and if he does not appear, and shew cause to the contrary, sequestration is awarded against him. The court at the same time appoints the creditors to meet and choose an interim factor for managing the estate, and also appoints a subsequent meeting for choosing a trustee. When. the factor is chosen, he has power to take possession of the whole estate, books, and vouchers of the bank rupt, 'who is bound to grant powers of attorney, for 'recovering any effects he may have abroad. At the next meeting ordered by the court, which must be within six weeks, and not less than four of the first deliverance on the petition for sequestration, the cre ditors who have produced their grounds of debt, and affidavits to the verity, proceed to elect a trustee, to whom the estate may be assigned for the general be hoof. This trustee is to be chosen by a majority of the creditors in number and value. Two trustees may he chosen to act, the one failing the other, but one only can act at the same time. At this meeting the bankrupt must exhibit a state of his affairs, and the interim factor must also produce an account of his management.
The trustee must find security to the creditors for his faithful management ; after which the Court of Session, upon application, will confirm his nomina tion, and he is then authorised to take possession of and uplift the estate of the bankrupt, and to exoner the interim factor. The court at the same time ap
points the bankrupt to grant a regular conveyance of his whole estate to the trustee under the pain of frau dulent bankruptcy, and failing his doing so, the court may commit him to prison. Whether such conveyance be granted or not, the whole estate is adjudged by the court to be vested in the trustee EA behoof of the creditors.
The trustee must, within eight days of his ap pointment, apply to the sheriff to fix two days for the examination of the bankrupt, upon all matters relating to his affairs. The bankrupt's wife and others of his family, and any other person connected with his affairs, may also be examined. At the last of these examinations, the bankrupt must take an oath that lie has exhibited a full state of his affairs ; and failing his doing so, he shall be guilty of the crime of fraudulent bankruptcy, and punished ac cordingly, and rendered infamous. The trustee may apply to the court to grant protections to the bankrupt from diligence to enable him to attend exa minations, and to assist in recovering his estate; and while so employed, the creditors may give him an al lowance for his support not exceeding two guineas a week.
A general meeting of the creditors is to be held the first lawful day after the last examination of the bankrupt, for the purpose of instructing the trustee as to the management of the estate. At this meet ing three commissioners are to be chosen to andite the accounts of the trustee, to fix the commission to which he shall be intitled, and to advise and concur with him in compromises and submissions as to the bankrupt's estate.
It is the duty of the trustee to recover and con vert into cash, as soon as possible, the estate of the bankrupt, which shall be a fund of division among those who were creditors prior to the sequestration. All preferences or conveyances in security of prior debts, which have been granted by the bankrupt to prior creditors within sixty days of the application for sequestration, are presumed to have been fraudu lent, and are liable to be reduced ; and all arrest ments and poindings used by individual creditors, within the same period, are void, and give no prefer ence, except that the bona fide arrester or poinder is entitled to retain his expenses of diligence, and ten 'per cent. more on the price or appraised value. All bona jide transactions with the bankrupt in the buy ing and selling of goods, and paying or receiving of money, previous to the sequestration, are safe from challenge.