sharge the bankrupt from his liabilities. | Since the year 1772 there has been a succession of sequestration acts, of which the latest was passed on the 17th of August, 1839 (2 & 3 Vict. c. 42). Its main features of distinction from the immediately previous act (54 Geo. III. c. 137) are these: It enlarges the class of persons who may be subjected to the process: instead of being a process of which every step must be taken in the supreme court, the sequestration, being awarded there, is remitted to the sheriff's local court, where the routine business proceeds under the sanction of the sheriff, who has an authority bearing a general resemblance to that of the commissioner in England. The winding up of the proceedings and the taking the process out of court require the sanction of the supreme judicature. Sequestration reduces the interest which will qualify a creditor to sue for the application of the act, and abbreviates the proceedings. How a man becomes bankrupt.—A person who is insolvent is made notour bankrupt, by being imprisoned either according to the old form of horning and caption, or in terms of the 1 & 2 Vict. c. 114, or by such writ of imprisonment having been issued against him, which he seeks to defeat by taking sanctuary within the precincts of the Palace of Holyroodhouse, fleeing, absconding, or forcibly defending his person. If the individual be not liable to imprisonment, from his residing in the sancJuary, being abroad, having privilege of parliament, &c., the execution against him of the charge which precedes the warrant of imprisonment, if accompanied by an arrestment of his goods not loosed within fifteen days, or by a poinding of his moveable goods, or by an adjudication of his real property, will make him bankrupt. A person whose estate is sequestrated, if not previously bankrupt, becomes so from the date of the first judicial deliverance in the sequestration. The principal effect of bankruptcy, is to strike at alienations to creditors within sixty days before it, and to equalize attachments against the estate taken within sixty days before and four months after it. Who may be sequestrated.—The classes of persons coming within the 2 & 3 Vict. c. 41, are enumerated as any debtor "who is or has been a merchant, trader, manufacturer, banker, broker, warehouseman, wharfinger, underwriter, artificer, packer, builder, carpenter, shipwright, innkeeper, hotel-keeper, stable-keeper, coach-contractor, cattle-dealer, grain-dealer, coaldealer, fish-dealer, lime-burner, printer, dyer, bleacher, fuller, calenderer, and generally any debtor who seeks or has sought his living or a material part thereof, for himself, or in partnership with another, or as agent or factor for others, by using the trade of merchandise, by way of bargains, exchange, barter, commission, or consignment, or by buying and selling, or by buying and letting for hire, or by the workmanship or manufacture of goods or commodities:" (§ 5) unless the debtor consent to the sequestration, he must have been bankrupt, or must have been sixty days in sanctuary within the space of a year, and must have transacted business in Scotland, and must within the preceding year have resided or had a dwelling house in Scotland. The estates of a deceased debtor may under certain restrictions be sequestrated though he was not bankrupt and did not come within the above classification. Application and awarding.-The application for sequestration is by petition to the court of session. It may be either by the debtor with concurrence of creditors, or by the latter. The persons who may petition or concur are any one creditor to the extent of 50l.; any two to the extent of 70l.; and any three or more to the extent of 100l. Where the petition is with the debtor's consent, sequestration is immediately awarded.. Where it is required solely at the instance of the creditors, measures are taken for citing those concerned, and for procuring evidence of the statements on which the pe tition proceeds. When sequestration is awarded, the deliverance remits the pro cess to the sheriff of the county, and appoints the times and place of certain meetings for arranging the management of the estate. In all questions under the act, the sequestration is held to commence with the date of the first judicial deliverance to whatever effect, on the application; and the effect of the process in attaching | court of session and to the sheriff for his the funds and neutralising the operations conduct. He may be removed by a maof individual creditors operates by rela- jority in number and value of the cretion from that date. The judgment ditors, and one-fourth of the creditors in awarding sequestration is not subject to value may apply for his judicial removal, review, but it may be recalled at the in- showing cause. The trustee's title to act stance of the debtor, and on his showing commences at the time when his election that it should not have been awarded; and is judicially confirmed. In the case of a the court may on equitable principles, disputed election, the question may be and for the better management of the carried from the court of the sheriff, who estate, recall the sequestration, if nine- has in the first place the judicial sanction tenths of the creditors apply for a recall. of the election to the court of session. Management.-At their first meeting The judicial proceedings vesting the esthe creditors either choose an "Interim tate are entered in the registers of real Factor," or devolve his duties on the property in Scotland, and at his confirmasheriff clerk of the county. His func- tion all the real and personal property tions are confined to the custody and pre- of the bankrupt within the British emservation of the estate. He takes possession pire vests in the trustee, and is considered of the books, documents, and effects, and as having vested in him from the date of lodges the money in bank. He has no the sequestration. A copy of the act and administrative control, and cannot con- warrant of the trustee's confirmation, vert the estate into money, or otherwise certified by the clerk of the bill chamber attempt to increase its value. The person in the court of session, is declared by the on whom the estate is finally devolved, statute to be sufficient evidence of th the trustee, is elected by a majority in trustee's title, to enable him to sue in any value of the qualified creditors present court in the British dominions. at a meeting judicially appointed to take place not less than four and not more than six weeks after the date of the awarding of the sequestration. The trustee stands in place of the chosen assignee in England. In Scotland there is no person whose office corresponds with that of the official assignee, but a committee of three creditors, called commissioners, is appointed at the same meeting and in the same manner as the trustee, whose duty it is to superintend the proceedings of the trustee, audit his accounts, fix his remuneration, decide on the payment of dividends, &c. Relations of the bankrupt, and persons interested in the estate otherwise than as simple creditors, are disqualified as trustees and commissioners. The trustee has the duty of managing and recovering the estate, and converting it into money. He is the legal representative of the body of creditors, and in his person are vested all rights of action and others in relation to the estate of which the debtor is divested by the bankruptcy. He is bound to lodge money as it is received, in bank, under certain statutary regulations fortified by penalties. The trustee is amenable to the The bankrupt will obtain a warrant of liberation if he have been imprisoned, or otherwise of protection from imprisonment, at the commencement of the process, if there be no valid objection to it. The court of session's warrant is effectual to protect him from imprisonment in all parts of the British dominions. Four-fifths in value of the creditors may award him an allowance until the payment of the second dividend. It is not in any way measured by the amount of the dividend, but is restricted in all cases to a sum within 31. 3s. per week. There are provisions for the examination of the bankrupt, his family, servants, &c., and in general for enforcing a discovery of the estate, bearing a general resemblance to the provisions for the like purposes in England. The bankrupt's release from the debts which may be ranked or proved on his estate is accomplished by a judicial discharge. If all the creditors who have qualified concur, he may petition for it immediately after the creditors have held the statutary meeting which follows his examination. Eight months after the date of the sequestration he may petition for it if a majo rity in number and four-fifths in valus concur. He makes an affidavit that he Dividends." When the trustee has ful has made a fair surrender, and after cer- filled his functions under the act, he calls tain formalities tending to publicity, and a meeting of the creditors, that they may the elicitation of reasons of objection, he record their opinion of his conduct, and receives his discharge. It is granted on their judgment he may apply to the either by the sheriff or the lord ordinary court for a discharge, parties being heard of the court of session, and in the former for their interest: on his being judicially case it is confirmed by the lord ordinary, discharged, the sequestration is at an end. and registered in the bill chamber of the The sequestration act contains provisions court of session. for suspending the judicial realization and distribution of the estate by a composition contract. These provisions are nearly in the same terms with those for the same purpose in the English statute, which were originally adopted from the Scottish sequestration system. (On the Law of Bankruptcy, Insolvency, and Mercantile Sequestration in Scotland, by J. H. Burton, Esq., Advocate.) Ireland. The Irish law of bankruptcy has been gradually assimilated to the English law by several recent acts (6 & 7 Wm. IV. c. 14; amended by 1 Vict. c. 48, and 2 & 3 Vict. c. 86). There is no separate court of bankruptcy; but there are two commissioners who are empowered to act by a commission under the great seal. There are no official assignees. Ranking and Dividends.-What is called in England the proof of debts, is called in Scotland "Ranking." The trustee is the judge of each claim in the first instance, his decision being subject to judicial review. Creditors produce with their claims, affidavits and vouchers. The peculiar character of the law of real property, and the securities and other rights to which it gives rise, operate some distinctions between the ranking in a sequestration in Scotland and proof in England. The most important particular, however, in which the Scottish system differs from the English, is in the absence in the former of the distinction between partnership and individual estates which characterises the latter, the creditors of a company in Scotland being entitled to rank in the bankrupt estates of the individual partners, the claim on the company estate being in each case first valued and deducted. The provisions of 6 Geo. IV. c. 16, in England, regarding contingent and annuity creditors, have been incorporated in the Scottish sequestration act, but it was an old established practice in Scotland for the claims of such creditors to be equitably adjusted. A creditor, to share in a dividend, must lodge his claim at least two months before the time when it is payable. The first dividend is pay-ject to the revision of the Circuit Court able on the first lawful day after the expiry of eight months from the date of the sequestration, and the others successively at intervals of four months. The trustee and commissioners may with the sanction of the creditors summarily dispose of whatever portion of the estate may be in existence twelve months after the date of the sequestration. The unclaimed dividends are lodged in bank, at the direction of the bill chamber clerk, who preserves entries of them in a book called the 66 Register of Unclaimed United States of North America.In 1841 an act was passed by Congress to establish a uniform system of bankruptcy throughout the United States of North America. The act came into operation early in 1842. The courts invested with jurisdiction, in the first instance, in bankruptcy cases, are the District Courts of the United States; and they are empowered to prescribe rules and regulations and forms of proceedings in all matters of bankruptcy, sub of the district. The district courts decide if the persons who apply to them, whether debtors or creditors, are entitled to the provisions of the bankrupt law; appoint commissioners to receive proofs of debt, and assignees of the estate; and make orders respecting the sale of the bankrupt's property. If the debtor himself commences proceedings, he gives in a list of his creditors and an account of his property, and twenty days' notice at least must be given of the day when the petition will be heard, when any person can be heard against it. If the bankruptcy is decreed, the bankrupt's property is vested in an assignee. The bankrupt is allowed to retain his necessary household and kitchen furniture, and such other articles as the assignee shall think proper, with reference to the family, condition, and circumstances of the bankrupt, but the whole is not to exceed 300 dollars in value: the wearingapparel of the bankrupt, his wife, and children, may also be retained by him in addition. An appeal lies to the court from the decision of the assignee in this matter. The bankrupt next petitions for a full discharge from all his debts, and a certificate thereof, and after seventy days' public notice, and personal service or notice by letter to each creditor, the petition comes on for hearing. The grounds for refusing the bankrupt his discharge and certificate are the same generally as those which disentitle a bankrupt in this country to the favour able consideration of the court-concealment of property, fraudulent preference of creditors, falsification of books, &c. In cases of voluntary bankruptcy a preference given to one creditor over another disentitles the bankrupt to his discharge, unless the same be assented to by a majority of those who have not been preferred. If at the hearing a majority of the creditors in number and value file their written dissent to the allowance of the bankrupt's certificate and discharge, he may demand a trial by jury, or may appeal to the next circuit court; and upon a full hearing of the parties, and proof that the bankrupt has conformed to the bankrupt laws, the court is bound to decree him his discharge and grant him a certificate. The discharge and certificate are equivalent to the certificate granted to bankrupts in England. In case of a second bankruptcy the bankrupt is not entitled to his discharge unless 75 per cent. has been paid on the debt of each creditor which shall have been allowed. Persons who work for wages are only entitled to wages to the extent of twenty-five dollars each out of a bankrupt's estate for labour done within six months next before the bankruptcy. France.-In June, 1838, the French law of 1807 on bankruptcy and insolvency was abrogated, and an entirely new law was promulgated, which now forms Book III. of the Code de Commerce (Des Faillites et Banqueroutès). In France, the Tribunal of Commerce acts as a court of bankruptcy, and its judgment declares the insolvency (faillite). The same judgment names the "juge-commissaire," who is a member of the Tribunal, and discharges duties analogous to those formerly performed in England by the old commissioners of bankruptcy: he fixes the sum to be allowed to the trader for support, conducts the examination into the affairs of the estate, directs the sale of property, &c. In some cases an appeal lies from his decisions to the Tribunal of Commerce. The "syndics" act as assignees, but are not selected from the body of creditors, and they are remunerated for their services at the discretion of the Tribunal. As the expense of prosecuting fraudulent bankrupts, when successful, is defrayed by the state, minutes, &c. of each case are made whenever required, for the use of the public department which has cognizance of prosecutions in bankruptcy; and the report which the syndics make to the "juge commissaire" on the state of the trader's affairs is always transmitted with observations to the "procureur du roi." A trader may be declared insolvent at the instance of one or more of his creditors; but if he ceases to fulfil his engagements he is required to make a declaration of insolvency before the Tribunal of Commerce, accompanied by a statement of his affairs. The Tribunal next appoints a "juge-commissaire" for this particular case, and also provisional syndics. A "juge de paix" is then required to place his seal on the effects, and the trader himself is taken to a debtors' prison, or placed in custody of an officer; though, when a voluntary declaration of insolvency has been made, he is not deprived of his liberty. The last meeting of creditors is held for the purpose of hearing a report by the syndics of their proceedings, and of deliberating on the concordat, which is in most respects equivalent to a certificate in the English bankrupt law, and must be signed at this meeting, at which the trader must be present. The syndics oppose or favour the concordat as the case may be. The concordat requires the consent of a majority of the creditors who also represent three-fourths of the whole debts that are proved. There can be no concordat in the case of fraudulent bankruptcy. The concordat is incomplete until it has received the sanction of the Tribunal of Commerce, acting upon the report of the juge-commissaire. This completion of the process is called the "homologation ;" and, after giving a statement to the trader, showing the result of their labours, in presence of the juge-commissaire, the functions of the syndics cease. The trader may be prosecuted for fraudulent bankruptcy after the homologation. The term " Banqueroute" is applied in the French code to insolvency which is clearly traceable to imprudence or extravagance, and the bankrupt is liable to prosecution. The Code de Commerce declares that any trader against whom the following circumstances are proved is guilty of Simple bankruptcy: -If his personal or household expenses have been excessive; if large sums have been lost in gambling, stock-jobbing, or mercantile speculations; if, in order to avoid bankruptcy, goods have been purchased with a view of selling them below the market price; or if money has been borrowed at excessive interest; or if, after being insolvent, some of the creditors have been favoured at the expense of the rest. In the following cases also the trader is declared a Simple bankrupt:-1. If he has contracted, without value received, greater obligations on account of another person than his means or prospects rendered prudent. 2. A bankruptcy for a second time, without having satisfied the obligations of a preceding concordat. 3. If the trader has failed to make a voluntary declaration of insolvency within three days of the cessation of his payments, or if the declaration of insolvency contained fraudulent statements. 4. If he failed to appear at the meeting of the syndics. 5. If he has kept bad books, although without fraudulent intent. It is fraudulent bankruptcy when an | insolvent has secreted his books, con cealed his property, made over or misrepresented the amount of his capital, or made himself debtor for sums which he did not owe. A fraudulent bankrupt who flees to England may be surrendered under the CONVENTION TREATY. It has been decided by the French tribunals that a certificate obtained in England by an English trader who flees to France does not free him from the demands of a French creditor who has not been a party to it. BANNERET, an English name of dignity, now nearly if not entirely extinct. It denoted a degree which was above that expressed by the word miles or knight, and below that expressed by the word baro or baron. Milles, speaking of English dignities, says that the banneret was the last among the greatest and the first of the second rank. Many writs of the early kings of England run to the earls, barons, bannerets, and knights. When the order of baronet was instituted, an order with which we must be careful not to confound the banneret, precedence was given to the baronet above all bannerets, except those who were made in the field, under the banner, the king being present. This clause in the baronet's patent brings before us one mode in which the banneret was created. He was a knight so created in the field, and it is believed that this honour was conferred usually as a reward for some particular service. Thus, in the fifteenth of King Edward III., John de Copeland was made a banneret for his service in taking David Bruce, king of Scotland, at the battle of Durham. John Chandos, a name which continually occurs in the history of the wars of the Black Prince, and who performed many signal acts of valour, was created a ban. neret by the Black Prince and Don Pedro of Castile. It is in the reign of Edward III. that we hear most of the dignity of banneret. Reginald de Cobham and William de la Pole were by him created bannerets. In this last instance the creation was not in the field, nor for military services, for De la Pole was a merchant of Hull, and his services consisted in supplying the king with money |