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creditors. An unmarried purser in the navy, who had £50 of half-pay, was ordered to assign £20 annually. An examiner of customs, with a salary of £380, whose debts amounted to £3600, and available funds to £12, was obliged to assign £200 a-year. A serjeant who had half-pay amounting to £45, and whose wife had a pension of £30 a-year, had to assign £25.3 A clergyman who had a wife and seven children, and whose debts, amounting to £1868, were chiefly occasioned by losses in farming, had to assign half his stipend of £150.4 In the case of an officer on half-pay, the circumstance that his wife had a separate income was considered, though it was entirely at her own disposal.5 An officer in the army, whose debts amounted to about £200, whose half-pay was £127, 15s., and who had a wife and two children, was ordered to assign £30 for the first year, and £35 for the subsequent years. An exciseman was not obliged to assign part of his salary, when the effect of his doing so would have been his dismissal; and the cessio was granted to a serjeant, with a pension of 2s. per day, without his assigning any part of it, he having two children, and being incapacited for service by wounds. In fixing the proportion of salary to be assigned by public servants, and indeed in deciding whether they are to part with any portion of it, it will be for consideration whether the interests of the public are likely to be injured. In some departments it has been the policy to give very small salaries to junior officers, and to make the higher incomes of the seniors, both a temptation to steady continuance in the service, and a reward for past exertions. In such cases, while it has been found impossible consistently with the public service to retrench the incomes of the inferior officers, the higher paid seniors have had in many instances to part with a proportion of their emoluments.9

The decree protects the debtor from all proceedings tending to imprisonment, on the part of the creditors called to the action, commenced previously to the date of the decree; but it goes no farther. It does not, like a discharge in a sequestration, extinguish his debts, nor does it prevent those who have raised diligence against his property from pursuing it, and obtaining a legal preference. Whatever property the debtor afterwards acquires is attachable for payment of his old debts.1 10

Thomson v. Ramsay, 23d February 1822.-2 Mill v. Stratton, 9th March 1824.-3 Holywell v. Frank, 6th June 1824.- Harris, 11th June 1836.5 Clark, 23d May 1833.—6 A. B., 2d March 1833.- Chisholm, 21st June 1823. Fraser v. Kennedy, 12th June 1824.- See the Law of Bankruptcy, &c., p. 658.—1o B. C. ii. 596, 597.

CHAPTER VI.

VOLUNTARY TRUSTS AND COMPOSITIONS.

SECT. 1.-Trust-deed.

THE general nature of Trust-deeds has been considered in another part of the work. It is usual, and considered prudent, in a trust-conveyance for behoof of creditors, to appoint but one trustee to act at a time. The deed generally conveys the whole effects of the granter, heritable and moveable, to the trustee, that they may be sold, and the proceeds may be distributed among the creditors according to their just legal claims. If the debtor have heritable property, it must be conveyed by a deed which will empower the trustee to invest himself with that species of property, and the trustee's right is not completed till sasine is recorded. (See above, p. 233.) In ordinary moveables the trustee is invested by tradition, and it was found that household furniture retained by the granter of the trust was not exempted from the diligence of creditors. In debts or other incorporeal moveables investment takes place by simple assignation intimated to the debtor. It will depend on the conveyance being thus completed before sixty days from the debtor's bankruptcy, and on the absence of previous diligence by a creditor, whether the trust is reducible by non-acceding creditors or not. (See above, p. 371.) That the debtor was insolvent when he granted the trust is no ground for reducing it under the act 1621 (see above, p. 370), as it is only fraudulent conveyances to the prejudice of creditors that are struck at by that statute.2 No trust can be effectual to prevent a creditor who has not acceded to it from proceeding to enforce his separate debt, and those who interfere with the property of the bankrupt, without the authority of all concerned, become liable to the unacceding creditors. On the failure of a retail dealer the wholesale merchants who had supplied him with stock held a meeting at which they agreed each to take back such of his stock as was unsold, and to subscribe certain sums for the purpose of bringing the situation of the other creditors on a par with their own, and of saving to all concerned the expense of legal proceedings. They were found liable either

1 Gibson v. Wilson, 29th May 1841.-2 B. C. ii. 486, 492.

to restore the abstracted property, or to pay a non-acceding creditor in full.1

Accession. By a formal deed of accession signed by the creditors, they may bind themselves, not only to abstain from separate proceedings, but to conform to certain prescribed measures to be adopted by the trustee with regard to the estate, to submit questions to the decision of arbiters, and to agree to the debtor's discharge in certain circumstances.2 Accession to the mere extent of precluding the creditor from carrying on separate proceedings may be deduced from circumstances, such as those of his attending a meeting where the creditors in a body agree to the trust, and its being in consequence proceeded in without any objection being taken by him.3 A mere demand by a creditor of payment from a trustee does not amount to accession.* Where a party, previously to attending a meeting of creditors, intimated that if 66 any unforeseen difficulty should occur to prevent the proposed arrangement from being completed" he would take all competent means for his security, he was found entitled to proceed with diligence, on the property being put up to sale at various upset prices, and no offerer appearing.5

SECT. 2.-Composition-contract.

A Composition-contract is another method by which the estate of a debtor may be distributed among his creditors, without having recourse to the operation of the bankrupt laws. The most approved method of adopting such a measure is in the course of a sequestration, and in terms of the sequestration statute, if the debtor be liable to its operation. This species of composition is more fully considered above. (See p. 407.)

In a voluntary composition-contract the debtor having come to an understanding with all his creditors that they will release him from his liabilities, on his paying them so much per pound within a certain time, comes under an obligation to that effect, and finds caution for its fulfilment. Professor Bell says, "This properly ought to consist of a deed on stamped paper, regularly subscribed by both parties. But less formal evidence may bind the parties, and ground

'Crawford v. Black, 2d December 1829.-2 B. C. ii. 501, 502.—3 Lea v. Landale, 16th January 1828. Bett v. Smith, 9th December 1837.4 Campbell v. Macdonald's Trustees, 3d July 1829. Hamilton v. Queensberry's Executors, 21st June 1834.-5 Kerr's Trustees v. Russell, 15th December 1832.

an action for enforcing the contract. 1. An offer by a holograph letter on the part of the bankrupt, accepted by a minute subscribed by the creditors at a meeting, will be sufficient to bind the contract. 2. If the creditors sign the agreement, not while assembled, but separately, it ought to be done before witnesses and regularly attested. But, 3. This more solemn way of signing deeds or consents, to be executed by a great number of persons, is so much neglected in practice among mercantile men, who generally think their subscription alone sufficient to bind them in the most important transactions, that the court would probably not sustain the objection on the statutes relative to the authentication of deeds, unless the party should deny his subscription." It is generally a condition, that those who consent to a composition do so on the understanding that the other creditors are to follow their example, and, in such a case, if all do not accede the contract is binding on none.2 It is essential to the principle of a composition-contract that no creditor shall be favoured above the others; and a preference to a creditor who was cautioner for payment of the composition was found illegal. If the creditors accept of a composition, under certain conditions, whether as to payment or otherwise, and these conditions are broken, the original debt revives. But if the creditors not only accept of an offer of composition, but grant a present discharge to the bankrupt, without relation to the payment of the composition, they become creditors only for the new debt constituted by the composition-contract.

Cautioner. There are generally cautioners for the fulfilment of the bankrupt's obligation in the contract. If they bind themselves as full debtors, along with the bankrupt, for the composition, they will not be relieved by such indulgence by the creditors to the bankrupt, as would relieve them if they were merely cautioners.5

B. C. ii. 504.- Brown v. Macintyre, 1st June 1830. Blincow's Trustees v. Allan & Co., 28th August 1833, Shaw's Supplement, 118.Robertson v. Ainslie's Trustees, 13th July 1837.- See the Law of Bankruptcy, &c., p. 678.-5 Ibid. p. 680.

PART XIV.

LEGAL REMEDIES.

CHAPTER I.

JUDICIAL ENFORCEMENT AND PROHIBITIONS.

SECT. 1.-Performance of Obligation.

ALTHOUGH the most usual solution of questions regarding the fulfilment of obligations is a pecuniary measurement, in the shape of damages, of the injury which the one party has suffered by the failure of the other to fulfil his obligation; yet there are many cases in which absolute fulfilment is enforced by coercive measures. Where a person has made clear his right to possession of any specific subject-such as a house which he has bought and paid for, a piece of land which was included in his lease, &c., possession is enforced by the ordinary courts; but this is not so properly to be termed a compulsory fulfilment of a contract, as a delivery to the owner of that which is his own, and a termination of wrongful possession. The most effective method of adapting an obligation for prompt fulfilment, is by inserting in it a clause of Registration for execution. In the case of the pecuniary obligations in which this clause is inserted, and in those to which the same privileges are allowed without the clause, viz. bills or notes, the sum is leviable by execution as if a decree of a court had been obtained for the amount (see p. 337). But when the agreement is not for the payment of money, but, as it is termed, ad factum præstandum, such a clause may warrant its enforcement by the compulsitor of imprisonment. Where there is no such clause, the courts of law may still enforce the obligation.

1 B. C. i. 335.

There

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