BANKRUPT. 



llAXKIU-PT LAWS OF SCOTLAND. 



Uatx M to voting in respect o{ oonipusiuoiu, u prescribed by the 

 Bankrupt Uw Consolidation Act, 184S>. we. . 



. r*c C'oMSilXwi /<* UMM* a/ ia.^r^ry. Tho court of bank- 

 ruptcy a court of record, and (or all pur|H*M* of bankruptcy ndtni- 

 kisicn both Uw apd equity. lU ordinary judffM are nommisaionar* 



Sainted under the great M*! The court o( appeal i* composed of 

 lorda justices of appeal in Chancery. Th oonuniasioner* have 

 itTtrM-t junMUcUnn limited by lhir rwpectiv* iuUn u. Tin- i 

 district comprise! the Metropolitan counties, andauasex, lUmpabiru, 

 aod part of Wiltahira, lU court i* presided over by one duel com- 

 jhaJMiar at a salary uf itftHW. | r annum, an<l by four comuiiaaionan 

 at salaries of 8000/. |r annum. The country district* are 

 umber, and their court* ore bald respectively at Mnnohuster, Loud*, 

 Liverpool, Birmingham, lirutul, Kxeter, and Newca*Ue-upon-Tyne. 

 To eaoh of the tint two above-mentioned district* are attached two 

 oouniaaioiMn ; to the lait fire one oimmiaionr only i* attached. 

 Each country commissioner baa a aalary of istiu/. per annum. To 

 aaoh court ia alao attachad one regiatrar in respect of each commix- 

 ajoaar The London court ha* one chief regiatrar who enjoy* a salary 

 of 1200J. par annum, and four regutran at 10001. per anniun each ; 

 baaidea a registrar who attend* the court of appeal. Country regis- 

 trar* raceire aalariea of SOW. per annum. To each court are also 

 attached certain official aaaignea* who are appointed by the Lord 

 Chanoallor, and muat be selected from the claw of merchant*, ln.-k.i-. 

 accountant*, or trader*. Ten iuoh assignee* are attached to the London 

 court, and eighteen are attached to the country court*. Their remune- 

 ration chiefly oonawta of percentage upon the assets collected. The 

 emolument! of the London assignees average from M>"'/ to 12001. 



Bclusive of office expenae*. In the country their emoluuiunt* are leas 

 and the variation* greater. 



Maaaaogen and broken are alao attached to the various courte. The 

 expenses of the official ataff and machiiiery employed in bankruptcy ia 

 vary great, and in the amaller caae* very much out of |. !>].., m.n to 

 the asset* actually diatributed among the creditor*. In the course of 

 the year* 1858, 1864, and 1865, the London and country commissioners 

 adjudicated on 2133 petition*. In 583 of these case* no dividend had 

 been paid, but of these only 40 were above SOW. Uf the others the 

 amount of aaaeta collected hod been 1,878,82., of which 1.073,386;. 

 had been distributed in dividend*. The solicitor*' charge* had been 

 235,51<U. ; the commissions, Ac., of the official assignee* were 85,6861. ; 

 the charge* for stationery, postage, Ac., were 1 -.--'. : other charges, 

 Including fees to brokers, measengers, travelling ex|>naee, Ac., amounted 

 to 294,501*. , and the balance in hand was 278,45ft. Thirty jwr cent. 

 or rather more of the oueU are consumed by costs. 



The number of certificates granted by the London Court of Bank- 

 ruptcy during the five year* ending July 6, 1858, was as follows, viz. : 

 first class certificate*, 807; second class certificates, 1176; third class 

 certificates, 467 ; certificates suspended, 693 ; certificates refused, 37 ; 

 adjournment of bankrupt*' examinations tine die, 404. 



A valuable report was presented to parliament in 1854, whence much 

 information as to the working of the present system of bankruptcy 

 may be obtained. 



A atoady and gradual diminution of the business of the court has 

 been for some yean progressing, and the better class of estates are now 

 almost universally wound up and distributed out of bankruptcy. To 

 remedy the arils observed, and to render the constituted court 

 thoroughly effective, a bill has been (February 7, 1859) introduced 

 into the House of Lords by the Lord Chancellor for amendment of 

 the Uw of debtor and creditor, and the procedure for administering 

 bankrupt and insolvent estate*. It i* thereby proposed to amalgamate 



the present bankruptcy and insolvency jurisdictions, and to extend to 

 the non-trader the liabilities and benefit* hitherto confined to traders, 

 ot for debt by way of ordinary remedy for it* recovery is 

 abolished. Lord John Russell also (February 15, 1859) intro- 

 duced to the House of Commons a somewhat similar measure, and 

 there can be now little doubt of great alteration and improvement 

 being eflbeted In thU important branch of administration. 



The subject of the bankruptcy and winding-tip of joint-stock com- 

 panies under the numerous statute* relating to them, will bo more 

 conveniently discussed under the title COMPANIES, JOI.NT STOCK, \V IM>- 

 nro-cr. 



Proceedings under the act fnr facilitating arrangements between 

 debtors (not briny Iradm) and their creditors, 7 A 8 Viet. o. 70, though 

 within the exclusive jurisdiction of the court of bankruptcy, will Tie 

 more fitly considered under the title INBOI.VBXCT. 



The Irish Uw of bankruptcy was gradually assimilated to the Knglish 

 Uw by several act*, ft 7 Will. IV. o. 14 ; amended by 1 Viet. o. 48, 

 and 2 A 3 Viet. c. 8 ; and recently by the 20 A 21 Viot. c. 60, the 

 various Uws relating to bankrupt* and insolvent* in that part of the 

 kingdom have been consolidated, and the administration thereof com- 

 mitted to a new court called ' The Court of Bankruptcy and Insolvency ' 

 (SO * 21 Viet c. V. 



See upon the subject of bankruptcy, Blackstone's ' Commentaries' 

 edited by Dr. Krrr, vol. ii. p. 484, et seq. 



In 1841 an act wa* passed by CongrCM to establiah n uniform system 

 of bankruptcy throughout the United States of North America. The 

 act came into operation in 1842. 



In June, 1188, the French Uw of 1807 on bankruptcy and insolvency 



wa* abrogated, and an entirely new Uw was promulgated, which now 

 forms Book HI. of the Code da Commerce (Do* Failliu> et Banqua- 



K.RUPT LAWS OF Ko iTI.AXD. In the earli<*t record* of 

 the Uw of Scotland we nod that debtor* were entitled to a diacbarga 

 on a judicial cession of their good* to their creditors. 

 which still subnet* in Scotland, we nholl consider in 

 head of Ccuiu IJo.Noiu M ; an. I only remark here, firetly, that it ho* 

 always beenagaaaral remedy, and not eoiilineil to u.ulei> . 

 claw; and secondly, that it is essentially an insolvent's reinadY 

 although it relieve the ftnan . ty, U leaves the I 



subsisting a* to the , 



The first statuU principle of a total discharge 



to the debtor was passed in 1772. All (tenons might W brought 

 it, and the funds ware held and dist rilmted by an assignee, 

 ii of the Court of Session. In 1783, the management 

 estate was removed from this judicial control, and placed, as it has 

 continued ever since, entirely in the hand* of the creditor* thenuelves, 

 aiul subject to review by the court only on point* of 1 

 Kami- time, however, the remedy wa* restricted to Irailcrt ; aresti 

 which continued in force till 1856. The Uw of bankruptcy, win 

 in the meanwhile undergone a variety of successive improvement*, in 

 that year was expanded in several most important |>ai-ticulars, and a 



Ution act was passed (19 A 20 Viet. c. 79), which with .. 

 amending act of the following year (20 t 21 Viet. e. 19), now comprises 

 the whole of the statute Uw on the subject of Sequti' i'rU, 



bankruptcy is styled in Scottish legal language. 



The law of bankruptcy 1 is, however, by no means 1 



to the proceedings connected with a sequestration. Thecoiumi-- 

 an act of bankruptcy constitutes what U called wXour (that is, notorious) 

 bankruptcy ; a status which ha* a retrospective as well as prospective 

 effect, and which subsist* until insolvency ceases. It ha* always been 

 tin- law, that any person might be rendered notour bankrupt, although 

 traders only could obtain a* a consequence the subsequent benefit of 

 sequestration. The general operation of on act of bankruptcy, 

 luting notour bankruptcy, consist*, 1. In its annulling all preference* 

 granted to particular creditors (except in the shape of payment in cash) 

 within sixty days prior to it* commission. 2. In its establishing a 

 " l>ari pattu ranking of diligence;" that is, an equality of sharing in 

 .ceds of :ill forms of execution against the property of the 

 debtor, amongst all persons who sue out such executions within tin- 

 period of sixty days before, and four months after, the commit-* 

 the act of bankruptcy. 



The acU of bankruptcy which constitute this status of notour bank- 

 ruptcy are, except one, all of a judicial nature. The first i* sequestra- 

 tion itself, or on adjudication of bankruptcy in England or Ireland. 

 These are sufficient, although the party be not really insolvent ; nil the 

 other acts must be conjoined with actual insolvency to have effect. 

 Notour bankruptcy then may be constituted by actual insolven- 

 curring with imprisonment, or at least arrest on a judgment debt, or the 

 absconding of the debtor to avoid arrest after receiving notice to pay 

 such a debt, or by a sole of his goods under a poinding (Ji. fa.), or 

 ttyiiettrati'jH for rent (distress), or by his application for the benefit of 

 'A :-:;.-. ..... bMn VBfi iaonmanl !> in n 1.1 g*, 



or it is otherwise impossible, execution against the goods or real estate 

 after notice to pay will suffice before the stage at which they are 

 actually sold. The sole case in which a merely private proceeding on 

 the part of the debtor will amount to an act of bankruptcy is where, 

 being insolvent, he takes refuge for twenty-four hours in the Sanctuary 

 a space of ground round Holyrood Palace, which still retains it* 

 royal privilege of protecting against arrest for debt. In the case of a 

 company or partnership, any of the above-mentioned forms which are 

 applicable will render it notour bankrupt, and the same effect will be 

 produced by any of the partners being rendered notour bankrupt in 

 respect of a company debt. 



We proceed now to the consideration of a sequestration for debt, or 

 adjudication of bankruptcy. This remedy is now of the widest possible 

 application ; being available to every one who is subject to the juris- 

 diction of the supreme courts of Scotland. It includes companies and 

 partnerships, and even extends to the property of persons deceased. 

 It may be applied for by the debtor himself, and it is not necessary 

 that he should be notour bankrupt, but he must obtain the consent of 

 creditors to the same amount ae would entitle them to petition of them- 

 selves. This amount is, 60i. for one creditor, 70J. for two, and 10W. 

 for three or more. It is not necessary that these debt* should be 

 liquidated, but they must not be contingent. If creditors- jietition for 

 sequestration without the consent of the debtor, it is requisite that he 

 ulionld have been mode notour bankrupt within four months prior to 

 the petition. The estate of a deceased debtor may be brought into 

 bankruptcy if he bad given written authority for it* , being done, or if 



Fraud ws not reckoned In Scotland an owcntUl element In the description 

 of * bankrupt. Tlic Sottlh name wa Jtytaur, s term iho etymology of which 

 Iswven hare not hitherto bcon very iiicccMful In tracing ; but It sec-mi to be 

 d-rivtd from drcorrr, French, u> nm-nmf one'* u!i-uucr, sun If to it Is 

 riionrtmiut with the former api-Uatlon In Enjllub Isw, dtcoctor or upcmlthnft. 

 The mot ancient Scottish appellation wun Hart-mm, ami the cemlo bonorum 

 was called ' the bare-man's process," Thi term, In Iced, convey* the generic 

 Idea without any adventitious quality. 



