constituted by special contract, except in the contracts of Bottomry and Respondentia.1

Tacit. The principal tacit hypothec, or hypothec coming into existence from the mere position of parties and without any stipulation, is the landlord's hypothec over his tenant's moveables (see next Section). The superior has a similar and preferable hypothec for feu-duties; and so when a quantity of materials for carpenter's work, with tools and furniture, were laid on the premises of an urban tenement, the superior was held entitled to recover them for the feuduty after they were sold and paid for. The law-agent's preferable right to get payment for his professional charges from the costs awarded against the opposite party is termed a hypothec.* It is believed that freighters of goods would be found to have a hypothec over the vessel for damage occasioned to them.3 There is a hypothec on a ship for repairs made on it abroad. The excise consolidation acts give a hypothec over the taxed commodities for arrears of duties on them."

SECT. 2.-Landlord's Hypothec.

In Agricultural Leases the landlord's hypothec extends over the produce of the ground in general, and over the tenant's live stock. As to the former, the hypothec is over every individual portion, so that while the landlord's rent is unpaid, he can deprive the tenant of the commercial use of it; but over the live stock the hypothec is merely general, the tenant having the management, and being entitled to increase the security by adding to his stock, or to decrease it by selling. Whether the hypothec extends over the tenant's furniture and implements is doubted. It has been specially decided that cheese, the produce of the farm, comes under the hypothec.8 In grass farms the hypothec extends over the live stock of the tenant, but not over the cattle of others taken in to graze.9 The produce of the ground is under hypothec for the rent of that year of which it is the crop, and not for that of a prior or subsequent year. The hypothec over the live stock exists for each current year; so that if it is not had recourse to for the rent of one year,+

E. iii. 1, 34.-2 Youille v. Lawrie, 24th January 1823.-* See as to this, above, p. 250.-3 B. C. ii. 39.4 E. iii. 1, 34.-5 4 & 5 Vict. c. 20, § 24. -6 E. ii. 6, 61. H. on L. & T. 678.-7 H. on L. & T. ii. 352.-8 Goldie v. Oswald, 25th January 1839.-9 H. on L. & T. ii. 351.-+ See Part XIV. Chap. VI. Sect. 3.

it remains as a security for the next year's rent, being only liable for one year's rent at one time.1 During the continuance of the hypothec, if the produce is sold by private sale, or otherwise conveyed away, the purchaser is liable to restore it to the landlord, or pay the value in as far as it does not exceed the rent due. A purchaser by bulk in open market is safe, but it would appear that he would be held liable if warned that the rent had not been paid. A purchaser by sample in open market is liable. It was found that where an increase of rent was stipulated for in the case of a deviation from a prescribed rotation, the increase was covered by the hypothec.5 It has been supposed that it is only when the tenant is in difficulties that the landlord is entitled to interfere with the sale and removal of the tenant's crop; but it has been found that, without reference to such a circumstance, the landlord is entitled to interdict the sale and removal of growing crop, until the tenant finds security for the current year's rent.6

Houses and Shops.-The furniture of a dwelling-house is liable to hypothec. "But the tenant may bond fide dispose of such articles of furniture as he does not need, and a fair purchaser is safe if there have been no sequestration."7 Whether the effects of temporary inmates are liable has not been decided. It seems to be understood that hired furniture is liable. Whether furniture deposited or lent without hire is liable seems rather more doubtful.8 Where it was decided by a court of law that the tenant had wrongful possession of the furniture, the hypothec was found not to apply.9 In a shop the hypothec extends over the goods, somewhat in the same manner as over the live stock in a farm,—the tenant has the unlimited disposal of the goods if there is no collusion.10

In Manufactories the right exists in the same manner over the stock of goods, and extends to the machinery. Where the amount to be paid for steam and water power by a tenant in a manufactory was left to arbitration, the House of Lords found that it was not covered by the hypothec."

The hypothec exists for three months after the term at which the year for the rent of which it is a security expires.12

B. C. ii. 33. E. ii. 6, 62.- E. ii. 6, 60. H. on L. & T. ii. 363.3 Cooper v. Bone, 18th December 1823. H. on L. & T. ii. 387.— 5 Robertson v. Clark, 1st June 1842.-6 Preston v. Gregor, 26th June 1845.7 H. on L. & T. ii. 358.—8 Ibid. 358-363.-9 Jaffray v. Carrick, 18th November 1836.-10 H. on L. & T. ii. 363.- Catterns v. Tennent, 12th May 1835, 1 S. & M'L. 694.-12 E. ii. 6, 62.

11

The landlord can not only prevent the subject of his hypothec from being sold, but can interrupt the attachment of a creditor unless he offer security for the rent.1

Where there is a sublease the subtenant is liable to the hypothec of his immediate landlord. He is likewise subject to the hypothec of the proprietor for the rent due by his immediate landlord. Where the privilege to sublet exists, and its exercise is intimated to the proprietor, the hypothec against the subtenant is only to the extent of the rent he is due, and he relieves himself by paying it to his immediate landlord. If the sublease have not been intimated he is subject to the proprietor's hypothec for the whole rent due to him.2

SECT. 3.-Bottomry and Respondentia.

Bottomry and Respondentia are contracts by which money is borrowed, on the chance of a voyage being successful, on interest or a premium, according to the extent of the risk. The contract is called Bottomry when the money is borrowed on the ship,-Respondentia when on the cargo. In a bottomry-bond the security is not merely personal but real over the ship, which is hypothecated for the creditors' security. In respondentia it is questioned whether a similar hypothec of the cargo can be created, and it is said that there does not seem any mode by which a person who advances money at respondentia upon goods laden or to be laden on board a ship on an outward and homeward voyage, can resort for the payment of his debt to the specific goods that may be brought back."3 A respondentia bond is of very rare occurrence in this country.

The legitimate use of a bottomry-bond is to obtain money which will enable the voyage to be completed, repayable only if that event take place. Hence it is not applicable to a vessel in a home port, and it does not appear that a security can be created over a vessel in such a position, except in terms of the registry act, as above noticed (p. 174). The master is, at all events, not authorized to give a security over the ship in a home port,-the owners alone have that power. When the master borrows on bottomry in a foreign port, the bond should narrate that the sum is necessary for the prosecution of the adventure.5 There is no re

1 E. ii. 60.-2 Ibid. 63. * Ibid.—5 Marshall, 749.

H. on L. & T. ii. 397-399.-3 Abbot, 153.Smith's M. L. 380-385.

striction on the amount of interest which may be covenanted for in a bottomry-bond. In ranking with each other, bottomry-creditors are in this peculiar position, that the holder of the security last in date is preferred, as having been most conducive to the success of the adventure, the others ranking on the same principle, each according to his posteriority.2

1 Marshall, 756.-2 B. C. i. 535. Smith's M. L. 385.

PART XIII.

INSOLVENCY AND BANKRUPTCY.

CHAPTER I.

RANKING OF CREDITORS.

THE Law of the Ranking of Creditors embodies the order in which claimants of different kinds are entitled to be paid out of their debtor's estate. When the estate is solvent, this branch of the law has no practical application to it, and it is therefore considered under the head of Insolvency and Bankruptcy, where, the estate being avowedly insufficient to meet all the demands on it, the rules which give some creditors a preferable claim to others are important. In all the methods of distribution followed by the Bankrupt Law-in Sequestration, Cessio, Voluntary Trusts, &c., the rules as to the ranking of creditors have more or less application, and therefore this subject is made introductory to the other departments of the Bankrupt Law.

SECT. 1.-Privileged Debts.

When the estate is insufficient to meet all demands, a creditor may have a preference over others, either by the nature of his debt, in which case it will extend over all the available estate of the debtor; or from a security, either legal or conventional, over a particular article of property, in which case the preference only holds in so far as it can be made good through means of that security. Debts of the former class are called privileged.

These are, 1. Funeral expenses, suitable to the position and presumed fortune of the deceased, including mournings to the widow and those of the children who resided in family