1000000030

942 / 1042

A
10 the end that the fubjea conveyed m~y be efFdhully
~ened in the r,r,lntee. Thefe adjudicalioll~ may be alfo
~ireéleu ag.inlllhe hei rof the Aranl~r, UpOIl • <huCe 10
entero Hcrc th~re is no lor :1 leg.1 reverG(,u; f(Jr,
as the a~judication is led for compltling the rigllt of a
{peci.1 fu bjeél, it lIIufl carry thal lilbjeét as irredeema·
bly al if the righ t had been volunt.rily eomplct<d.
9. AII adjudicQtions Icd within year an,1 day of Ihat
pne whieh has been made firfl elFeélual by feilin (where fei·
fio is nece~Qry) or exaél diligenee for obtaining f(ifin, are
preferable par; paffu. T he year and day runs from the
date ofthe adjudication, and not of the feifin or diligence
for obtaining it. After Ihe days of that period, they are
preferakle aceording the1heir dates. Alllhe eo adjuel.
gers within the year are preferable p.r; pa};, as if one ad.
judication h~d beeo 'Ied for all their deba. This makes
the feifin or diligence on the fir{\ adjudieation a eomOlon
right to the rdl, \Vho mun therefore be refund to the
olVner oC that diligenee his whole expence out in
carrying on and eompleting it. And though Ihat firn
adjudication lhoDld be redeemed, the diligence upon it nill
fubfins as 10 the ren. This , ar; poj'u preference, how.
tver, does not denroy the legal prefereoce of adjudicati·
Cn! led 00 deoil. fu ndi. See Ti!. xv. 15. Nor does it
uke io adjudications io implement.
10. Beforetreating of judicial falesof bankrupts enates,
the nature of fequeflration may be Ihonly explained,
which is a diligenee that generally ulhm io aélions of
fale. Sequenration of lands is a judicial aél of the court
of Sellion, .whmby the management of an enate is put
into the hands of a faélor or neward named by the eourt,
wbo gives fecurity, and is to be accouotable for the rents
10 all having interen. This diligenee is eompetent, ei.
ther where the right of the lands is doubtful, if it be ap
plied for before either of the competitors has attained pof.
reGion; or where the enate is heavily charged with the
debu: But, as it is an unfavourable diligenee, it is not
admitted, unlefs that meafure Ihall appear necerrary for
the fecuri ly oE creditors. SU!'jeéts, not brought before
tRe court by the diligence of ereditors, canAot fall under
kquenration; for it is the competitioo of ereditors which
alone founds the jurifdiétion of the coun tO take the
difputed fubjeél into their porrellion.
11 . Theeourt of Selli, nwho decrees the fequenration
has the nomination of the faaor, in whieh they are di·
reaed bYlhe reeommendation of the creditors. Af.,aor
appointe<1 by tite Scllion, though the proprietor had not
been inftEt in the lands, ha, a power to remove tenants.
Judicial faélors mull, withín fix months after eXlraéling
their faélory, make up a rental of the enate, and a lill
of the arrears due by tenanu, tO be put into the hands
of thec1erk of theproccfs, as a eharge againll themfelves,
Qnd a note of fuc~ alterations in the rental as may after·
wards happen; and mun alfo deliver to theckrk annu,lIy
a fcheme of their aeeounts, eharge and difeharge, under
heavy peMlties. They are, by the nature ofthei r o!lice,
bound to Ihefame dcgree of diligence tlm a prudent lIIan
adhibils in his own aIFairs; they :tre aceount.blc for Ihe
¡nteren of Ihe rellts, which Ihey either ha,'c, or byelili·
genee might have reenvcreo, from. year after Ihcir fall·
¡ng due. As it is much in ü.e pO\\'cr of thoCe f.élurs tO
W.
t~ke aIvanla~e nf the neeelliticl ~f creclitOT!, by r·'lfclt,t.
fing Iheir d:bts al an un~ervJluc. a!1 fu eh p~,.eh"r:s m.,de
enher by the f.ttor himlclf, or 10 his b~"oof, are decla.
red equivalent III :In aeq uitance or extintlion of Ihe debt.
1 u f ,étor can w.<tTdnl.bly pay 10 afly credilOr, without
an order of Ihe coun of Sdlion; for he is, by the tenor
nE hi, commiffi"n, Ji<téted to p.y the rents to thoJe wbo
0\ tll be found tO hove bell right to Ihem. Judicial fae–
IOrs are inlitleJ 10 a falary, which is geoerally Ilated at
6'e plf ((l/l . of their intromiffions; but it is feldom af.
eemined till theiroflice expires, or till their aecounlÍng ¡
that the eourt may modifya greater or fmaller falary, or
none. io proportion to Ihe faélor'sintegrilY and diligenee.
Many cafes occur, where the coun of Sellion, without
fequenration, name a faélor to preferve the rents from
perilhing¡ e. g. where an hcir is deliberaling <vhether to
eoter, where a minor is without tutors, where afuceelli–
on opens to a perfon refiding .broad; io all which cafes,
the faélor is fubjeéted to the rules laid down io aél of fe–
derunt, Feb. 13.173°.
12 . The word oanlruPI is fometimes applied to per–
fons whofe fuods are not fuflicient for their debts ¡ and
fometimes, not to the debtor, but to his enate. The
cou rt of Sellion are empowered, at the fuit of aoy real ~re­
ditor, to try the value of a bankrupt's enate, aod feH
it for the payn¡ent 'of his debu.
t3. No proeefs of fale, at the fuit of a creditor, can
proeeed withoU! a prOQf of the debtor's b.nkruptey, or at
lean that his 12nds are fo eharged with debts, that no
p,udent perfons will buy f,nm him; and Iherefore tbe
fummoO! of fale mun eomprehend the debtor's whole e·
nate. The debtor, or his apparent heir, and a1llhe real
creditors in polfellion, mun be made panies to ihe fuit ;
but it is fufficient if the olher creditors be ealled by 3D
ediélal citation. The fummons of fale eontains a con–
e1UfiOD of ranking or preference of the bankrupt's credi–
tors o In this ranking. firn and feeond terllls are aIligoed
to the whole eredilors for exhibiting io coun (or produ–
cing) their rights and diligenm; and the deme of ceni–
Gcatioo p,oeeeding t6ereupog, againn the wrilin2s not
produeed, has the fame e!feél in favour of the creditor,
whohave produced their rights. as if that dee, ee had pro–
eeeded upon an aélion of reduétlon·improbatioo. See
T it xxx. S. The ranking of thefe ereditors mun be
eoncluded by .n eXlraéled deeree, before the aélual fale.
The irredeemable. pr<lpeny of the Iands is .adjudged by
the eourt to the highen offmr at the fale. The eredi–
tors reeeiving payment mun grant to the purehafer abfo–
IlIte warrandice, to the extent 'of the fum receive<l by
them; and the I.nds purehafed are declared dilburdened
of all debls or deeds of the b.nkrupt, or his ancello",
either on paylI)ent of the priee by Ihe purehafer to the
ereditors according tO tReir preferenee, or on confignation
of it, io cafe of th~ir ref\lfal, in the h.nds of the m'ci–
(Irms of Edinburgh: The only remedy providcd to fuch
creditors as j\ldge Ihemfdves hun by the fale of divifinn
of Ihe price, even though ,hey fhould be minors. is an
a,qion for recovering their Ihare of the price againn the
credito<swho have receiveel it.
14. Tbe expence of Ihefe procdr~s is dilbl\' fed h~
thc faélor OUt of the rents in his hands j by wb;ch Ihe
I\hole