The Lord Ordinary on the bills is the Lord Ordinary in all matters connected with sequestrations (§ 3).

Notwithstanding its being remitted to the sheriff (see above, p. 378), the process is held to depend in the bill-chamber of the Court of Session, copies of the petition, deliverance, &c., being forwarded to the sheriff, who "shall have as full power and jurisdiction as hitherto possessed by the Court of Session (subject to review) in all questions in the sequestration, except in those cases where the power is otherwise specially conferred; and the sheriff-clerk and messengers-atarms and officers of the sheriff-court, shall have power to act in their respective offices under this act," the sheriff-clerk keeping a register of sequestrations (§ 27).

Interim Management.-The sheriff may regulate the interim management of property during the discussion of appeals or petitions and complaints (§ 130). The Lord Ordinary may, however, give directions for such management in case of appeal to the House of Lords, and in such case the sequestration is to proceed notwithstanding the appeal, “in all respects not inconsistent with, or injurious to the interests which may be affected by the appeal" (§ 131). After the sequestration is awarded, the sheriff, if it be necessary, may seal up and take charge of the books and papers of the bankrupt, and lock up his place of business until an interimfactor is chosen (§ 50).

Agents qualified to act in the Court of Session may carry on proceedings authorized by the act in the sheriff-court, being entitled to claim only the fees of sheriff-court agents (§ 132). No person by merely lodging an oath and claim, or being ranked, or receiving a dividend, or appearing or voting at a meeting, is liable "for any claim by the agent or other person employed by the interim-factor or trustee, for money advanced, or expense incurred, or remuneration 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 interim-factor or trustee by whom he may have been so employed in so far as the same may be competent to him; and no interim-factor or trustee shall have relief in respect of such payment against such creditor, reserving to such interim-factor or trustee relief against the estate, and against those creditors or others who may on other grounds be liable in relief” (§ 29).

Interruption of Prescription.-A creditor's petition, concurrence, or claim, interrupts prescription of his debt (see p. 445), and bars the statute of limitations of England or İreland (§ 26.)

Letters.-The Lord Ordinary or Sheriff may, at any time, direct for a period not exceeding three months, that all post letters addressed to the bankrupt, be delivered to the interimfactor or trustee, to be opened in presence of the sheriff, after written notice to the bankrupt to attend if he be within Scotland (§ 97.)

Fees, &c.-The bill-chamber clerks are appointed clerks in sequestrations. They are not to receive any farther fees than 6d. for each page of 150 words, of interlocutors, or "other papers ordered or required," but are to receive an additional allowance not exceeding in all £100 a-year, payable, with other expenses occasioned by the act, from the fund arising out of a table of fees appointed by the act. They have to keep a "Register of sequestrations," which must be patent to all concerned (§§ 19, 139, 140). Along with the keeper of edictal citations, the clerks have to preserve a file of the Edinburgh Gazette, which may be inspected for a fee of 6d. (§ 143.) A table of fees is appointed for advertisements in the London or Edinburgh Gazette, under the new or old sequestration act, and under the cessio act (§ 144, and sch. L).

Exemption from Stamp.-Operations connected with the vesting of the estate are exempt from stamp duty. They are described as "all conveyances, assignations, instruments, discharges, writings, or deeds," relating solely to property which, after the execution of the deed, remains part of the bankrupt estate, for the use of the creditors; also "all deeds, assignations, instruments, or writings, for reinvesting the said bankrupt in the estate; and all powers of attorney, commissions, factories, oaths, affidavits, articles of roup or sale, submissions, decrees-arbitral, and all other instruments and writings whatsoever relating solely to the estate;" "all other deeds and writings forming part of the proceedings," and all advertisements in the Gazettes (§ 145).

CHAPTER IV.

JUDICIAL SALE AND RANKING.

A PROCESS of judicial sale may be pursued by any creditor whose debt is made real on the heritable property, either by

adjudication, or by a voluntary burden. He must be "in possession," either naturally by occupancy, or legally by an action of mails and duties against the tenants, or sequestration for rent. The process may likewise, with some variation, be pursued by an apparent heir who has not been entered, in regard to lands left by an ancestor.2

To justify a process of ranking and sale, at the instance of creditors, there must be insolvency in relation to the subjects against which the sale is directed. It is sufficient, to this end, that the interest of the debts, and the other annual burdens, exceed the yearly income of the subjects under sale, or that the proprietor's estate has been sequestrated.3

On the relevancy of the action being sustained, a proof of the rental and value of the estate is allowed, for the purpose of instructing the bankruptcy. A term is assigned for the creditors to produce "all their claims, rights, and diligences," under condition that if not produced they are to be held to be false and ineffectual. The interlocutor must be advertised, three successive weeks after its date, in the Edinburgh Gazette.1

A proof is then taken, on commission, according to the ordinary rules of evidence, of the rental of the estate, or of the interest in it enjoyed by the debtor as liferenter, &c., allowance being made for burdens and deductions, public and private. If any creditor appear and "produce a real right," he is entitled to concur in the proof.5 §

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The calling of a summons of judicial sale by a creditor precludes the debtor from voluntarily alienating or dilapidating the property. If decree of sale is finally pronounced in the process, it is held in questions of ranking as if it had been pronounced at the date of the calling of the summons, and no separate adjudication can proceed during the dependence of the action.7 If the pursuer of the action abandon it, any creditor "in a situation to adjudge" may proceed with it.8

Sequestration and Factor.-When a judicial sale has been commenced, the Court, on the petition of a creditor holding a security, will sequestrate the estate for behoof of all who are entitled to rank on it for payment of their debts. In the

See p. 101.

* See p. 473.- See p. 338.-1 1681, c. 17. B. C. ii. 258. -21695, c. 24.-3 1690, c. 20. 54 Geo. III. c. 137, § 7.-4 A. S. 17th January 1756, §1; 11th July 1794, § 1.-5 A. S. 24th February 1692.-§ See the Law of Bankruptcy, &c., p. 665.-6 B. C. ii. 261, but see B. C. ii. 155. Carlyle v. Lowther, 27th February 1766, M. 8380.—7 54 Geo. III. c. 137, § 10. Ibid.-9 D. P. 674.

interlocutor awarding sequestration, a factor is appointed, generally at the recommendation of the creditors, to administer the property for the common behoof. The factor must find caution to the satisfaction of the clerk of court, with whom also he must lodge a rental of the estate and an account of arrears, within six months after his appointment. He must report alterations in the rents within three months after their occurrence, and he must once every year lodge an account of charge and discharge. The factor is authorized to uplift the rents, and pursue tenants in arrear, whether with removings or other diligence. He is an administrator only, entitled to expend the sums necessary for management, but not to pay creditors. He "is not at liberty to do any thing, however much it may tend to improve or ameliorate the subject, if not absolutely necessary for its preservation."3 The court does not, except in very urgent cases, interfere to authorize acts by judicial factors, leaving them in the ordinary case to their own responsibility.*

Common Agent.-The creditors elect a common agent to represent their interests as a community, independently of such agents as they may individually choose for the purpose of urging their respective claims. The common agent is chosen at a meeting advertised, through the Minute-book and the Edinburgh Gazette, fourteen free days previously. He is elected by a majority in value of the creditors, appearing by themselves or by mandataries; the qualification of each creditor being an oath of verity by himself, or (if he be out of Britain) an oath of credulity by his agent, produced, along with the grounds of debt, at least twenty-four hours before the meeting. Debts, consisting of annuities or liferents, are valued at ten years' purchase. No creditor can be appointed common agent. On being confirmed by the court, the agent applies for a term to be assigned, at which all creditors must produce their claims and vouchers, under penalty of their being held null. He must make up a state of the claims, and of the questions or disputes affecting them, suggesting an order of ranking.8

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A Committee of Creditors may be appointed at the meeting for electing the common agent; they are three in number. If the proceedings be not terminated within two years, they have to inquire into and report the reasons of delay.9

E. ii. 12, 57. D. P. 676.- A. S. 22d November 1711, §§ 6, 7, 8.-3 D. P. 680. Ibid. See the Law of Bankruptcy, &c., p. 667. B. C. ii. 265. A. S. 11th July 1794, § 2.- Ibid.-7 Ibid. 17th January 1756, § 3.Ibid. 1794, § 7.-9 Ibid. § 14.

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"They perform the duties of a standing committee for advising the common agent in all difficult points of management, and giving notice to the creditors of any important crisis requiring their united deliberations." 1

Sale. The Process of Sale is a separate course of proceedings which may have commenced before the Decree of Ranking is pronounced. The warrant proceeds on a memorial and abstract of the proof, remitted to the Lord Ordinary, and reported to the court. The interlocutor granting the warrant must be advertised once in the Edinburgh Gazette, and must be edictally executed.2

The sale takes place in the Parliament House at Edinburgh, under the eye of the Lord Ordinary on the bills. The articles of roup and inventory of title-deeds are authenticated by his signature. If any alteration of the articles be sought after they are so signed, application must be made to the court.*

The various claims of the creditors, after they have been discussed, are extended by the common agent in a draft of a decree of ranking, to be signed by the Lord Ordinary. Any creditor, who may not have previously claimed, is entitled to claim his share in the division, on payment of the expense occasioned by the delay.3 The principles on which creditors fall to be ranked have been already considered (see p. 356 et seq.).

CHAPTER V.

CESSIO BONORUM.

SECT. 1.-Introductory Remarks.

THE action of Cessio, by which a debtor, on giving up his whole available property to his creditors, is relieved from all existing diligences against his person for civil debts, had a very early existence in the common law of Scotland as derived from the civil law. England was for a long time without a similar system. Formerly, when the gaols became

B. C. ii. 269.-2 1681, c. 17; 1690, c. 20. A. S. 24th February 1692; 11th March 1777; 23d November 1793. 54 Geo. III. c. 137, § 6.-* See the Law of Bankruptcy, &c., p. 674.—3 A. S. 1794, § 12.