of accounts, which have taken place upon an opposite footing, for the last fourteen or fifteen years, might be challenged, upon the ground of error. So far as the authorities go, it may be laid down, that the statute only applies to cases of termly payments, which terminate with the life of the payee; such as annuities, payments in liferent, rents payable to the proprietor of an entailed estate, and such like.

Is

3. The third question which we proposed to consider, is in reference to the instrument" referred to in the statute. It says, that the rents, annuities, etc., "coming due at fixed periods, under any instrument that shall be executed after the passing of this Act, or (being a will or testamentary instrument) that shall come into operation after the passing of this Act, shall be apportioned so and in such manner," etc. What is the instrument here referred to? it, for example, the deed of entail, which gives the proprietor the right to his estate? or is it the lease under which the tenant on the entailed estate is bound to pay his rents? Is it the bond of annuity, by which right to the annuity is given? or is it the personal or heritable bond taken from the debtor, to whom has been lent the funds that produce the annuity? Is it the deed, which gives a liferent of funds in the hands of a banker? or is it the deposit receipt, or bill, or other document, which the banker gives, in acknowledgment, that he holds the funds, and will pay interest on them?

In the case of Knight v. Broughton, 12 Bevan, 312; 19 Law Journal, Chancery, p. 66, it was found by the Master of the Rolls, that the "instrument" referred to in the "Apportionment Act, is not the instrument creating the periodical payments, but that creating a life interest therein." The testator had executed a will, which came into operation, by his death, in 1838, after the statute had passed. Leases, under which rents were payable, had been granted, anterior to the statute. The question was, whether was the will or the lease the instrument? The Master of the Rolls decided that it was the will, and that the rents were, therefore, apportionable. "It is quite clear," he said, "that Mrs Knight became entitled to receive these rents, under an instrument which came into operation after the passing of the Act."

The decision does not seem to be in accordance with that of ViceChancellor Knight Bruce, in the case of Lock v. De Burgh (20 L. J., Chanc., p. 384). Estates were settled by indentures, dated in 1828 (before the Act)-and which came into effect in that year— upon a person for life, with a power of leasing. The liferenter granted leases after 1834, and died in 1847. His personal representatives claimed a proportion of the rents payable under the leases, which, upon the authority of the case of Knight v. Broughton, the heir-at-law refused to pay. The Vice-Chancellor, apparently without much consideration of the matter-at all events, without giving a reasoned judgment-held that, as the "leases were instruments executed after the passing of the Act, he thought the estate of Mr

Lock was entitled to a proportion of the rents, up to the time of his death."

This point also appears to have been overlooked in Scotland. It seems to have been quietly taken for granted, in every case that has occurred, that the view of the Vice-Chancellor was the sound one, and that the instrument referred to, was the lease, or bond, or bill, or deposit-receipt, under which the tenant, or other party liable in the rent, or the annuity, or interest, made the payment, and not the deed or instrument, by which the annuity or life interest was created.

If the latter view be the correct one, then the decisions which have been pronounced in Scotland, are erroneous; and, instead of taking the lease as the instrument, as was done in the cases of Blaikie and Campbell, it ought to have been the deeds of entail, which, having been executed, and having come into operation before the passing of the statute, the case was not one for apportionment at all.

Of course, no opinion is offered here, upon a point on which such high authorities have taken opposite views. It is one of the many points of this extraordinary statute that will require reconsideration. Can any one name the framer of the Act? The lawyers, to whom he has given so much work, owe him a debt of gratitude.

THE NEW BANKRUPTCY ACT.

THE Act 54 Geo. III., c. 137, regulated sequestrations in Scotland for twenty-five years, and the statute, recently repealed, of 2 and 3 Vict., c. 41, with which the present generation of lawyers were more familiar, endured for seventeen years. It may safely be said, that the new Act, which came into operation on the 1st of November last, will have a still shorter existence-not particularly from any inherent defects in the Act itself, but from the fact, that although each statute has been an improvement on its predecessor, and the new Act, in many essential particulars, corrects the deficiencies of the former practice, the process of sequestration is so peculiarly a practical remedy, that it must necessarily be the creature of experience. Every regulating statute is, therefore, more or less an experiment, even when free from the many inconsistencies and blunders, with which this measure is disfigured. The object of this article is, to point out a few of the improvements which the Act has introduced

119 and 20 Vict., c. 79. "An Act to Consolidate and Amend the Laws relating to Bankruptcy in Scotland:" 19 and 20 Vict., c. 91, "An Act to Amend and Re-enact certain Provisions of the Act of the 54th Year of King Geo. III., relating to Judicial Procedure and Securities for Debts in Scotland."

and to note, in passing, some of the inaccuracies which it was, perhaps, impossible, and certainly very difficult, to avoid.

Formerly, the privilege of sequestration was confined, by statute, to traders, on the assumption, apparently, that none but they might honestly become so involved, as to require such a remedy for the extrication of their affairs. The limitation was practically set aside, as there were few insolvents in this country who were not engaged in traffic of some sort. The landowner was described as a cattledealer, because he sent his own stock to market--the professional man was styled a dealer in shares, on the strength of some small interest he possessed in a gas or insurance company, and both, in this manner, obtained the benefit of the Act. But this distinction is now abolished; and every debtor subject to the jurisdiction of the Supreme Courts of Scotland, may be sequestrated. This theoretical extension will not increase the number of cases under the Act, so much as the power now conferred upon Sheriffs to award sequestration. A question has arisen, whether, under the statute, the sheriff has power to sequestrate the estates of a deceased debtor, and this point has been decided in the negative by at least one learned county judge. The point is one not free from difficulty; but it rather seems that such a decision is opposed to the spirit of the statute. The 18th section is the only one which directly confers powers upon the sheriff to award sequestration, and it is thus expressed :"Sequestration may be awarded either by the Court of Session, or by the sheriff of any county in which the debtor, FOR the year preceding the date of the petition, has resided or carried on business." It is maintained by some, that the italicised words limit the sheriff's jurisdiction, in the sequestration of deceased debtors, to the case where a petition may be presented on the day of, or the day after, the death, a limitation which practically prevents the sheriff being able to sequestrate the estates of a deceased, as no petitions would be presented with such indecent haste, after the death of the debtor. That section, however, seems entirely to be framed with a view to living debtors, while others so expressly recognise the sheriff's power to award sequestrations of a deceased's estate, that the construction indicated, can only be put upon the 18th section, at the expense of blotting these out. The 26th section, for example, directs, that when a petition is presented for sequestration of the estate of a debtor who is dead, the Lord Ordinary, or the sheriff, to whom it is presented, shall grant warrant to cite the successor, and a copy of the petition and warrant is directed to be left for him, if furth of Scotland, at the dwelling-house or place of business occupied by the deceased at his death, as well as at the office of edictal citations. The 29th, 30th, and 31st sections, all expressly recognise in this manner the power of the sheriff, and show how entirely it was contemplated by the Act, that he should sequestrate the

1 The Sheriff of Forfarshire.

estates of the deceased. Instead, therefore, of reading the 18th section so stringently as to make it override not only these subsequent clauses, but the evident spirit and intention of the statute, it might possibly be successfully pleaded that, according to wellrecognised principles of interpretation, the Act must be read so as to exclude absurdities, and in a sense agreeable to the manifest intention of the legislature. And thus, as it is apparent that the 18th section can only relate to living debtors, while other sections provide for the sequestration of the estates of deceased debtors, and recognise the sheriff's power to award such, the only result is, that there is no particular definition or limitation with relation to the residence of the deceased parties, whose estates the sheriff may sequestrate. But, the 18th section might be held to be applicable to such sequestrations, by reading the words, "for the year preceding the date of the petition, has resided or carried on business," in the only way in which they could apply to a deceased, "for the year preceding the date of his death, resided," etc. Unfortunately, there is no provision by which this question can be directly settled by the Court. The 31st section enacts, that the deliverance awarding sequestration, shall not be subject to review; but although there is no direct enactment that a deliverance not awarding, shall also not be subject to review, yet it would seem that the 19th section, by enacting, that in the case of a sequestration being refused by the sheriff, it shall be competent to present another petition to the Court of Session, implies that there can be no appeal against the sheriff's judgment. There is no question about the power of the Court of Session to sequestrate the estates of a deceased, so that such a remedy can never settle the meaning of the Act with regard to the sheriff's powers; and the anomaly may, accordingly, arise, of a sheriff in one county awarding sequestration of the estates of a deceased, while the judge of a neighbouring county refuses to do so, on the ground of want of statutory authority. This is just one of the instances where a little more care on the part of the framers of the Act, would have been very desirable.

The interim factor, after his appointment had passed from the hands of the creditors to that of the Court, by the Amendment Act of 16 and 17 Vict., c. 53, has been at length entirely dispensed with. This result has been effected, by providing for the election of the trustee and commissioners, at as early a period as possible, consistent with the due announcement of the meeting of creditors, and conferring upon the judge sufficient powers to take steps for the preservation of the estate, where that may be necessary, both before and after sequestration has been awarded. If the bankrupt be trustworthy, no procedure will be necessary until the election of trustee, which must take place not earlier than six, nor later than twelve days from the date of the Gazette notice. The Gazette notice must be inserted within four days from the date of the deliverance award

VOL. I. NO. 1. JANUARY 1857.

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ing sequestration, if awarded in the Court of Session, or if awarded by the sheriff, within four days after a copy of the deliverance could be received in course of post in Edinburgh. The meeting to elect the trustee and commissioners may thus be held as early as a week after the sequestration, and can scarcely in any case be postponed beyond a fortnight. If the creditors are not satisfied that the bankrupt can be left in possession, after the petition is presented, and pending the application, or if goods belonging to him are in their nature so perishable as to require instant looking after, then a judicial factor may be appointed, or the Court take such other measures as may be deemed necessary. During the short period which elapses after sequestration, before the trustee is elected, the sheriff has power, either upon application by the creditors, or without it, to seal up, and put under safe custody, the whole effects and books of the bankrupt. This is a duty which is imposed on the sheriff, and with which the Lord Ordinary is not burdened. The abolition of the office of interim factor has led to one of those inaccuracies in the framing of the Act-a very trifling one, but it is sufficient to show the manner in which the work has been done,-to which we have already adverted. The form of the Gazette notice of the sequestration, under the Act 2 and 3 Vict., was fixed by a schedule annexed to the statute, and it provided for two meetings, the one to elect an interim factor, the other to elect trustee and commissioners. It was necessary to deviate from the schedule when the Act of 16 and 17 Vict. came into operation, because the mode of appointing the interim factor was altered, and the sentence intimating that a composition might be offered at the meeting to elect a trustee, which was in these terms:-"A composition may be offered at this latter meeting," was invariably altered in practice, to suit the alteration in the number of meetings, by dropping the word "latter." In the schedule, fixing the form of the Gazette notice in the present Act, however, although there is only the one meeting provided for, we have still the old expression, "A composition may be offered at this latter meeting," the draughtsman of the Act having apparently simply copied the old schedule. We may here notice a similar overlook, which occurs at another part of the statute, equally illustrative of the rather slip-shod manner in which modern acts are drawn. In sect. 140, which relates to the bankrupt's discharge on composition, the following words occur; " and the clerk of the bills, or the sheriff-clerk, shall also issue an abbreviate of such deliverance in the form of Schedule ( ), hereto annexed, which abbreviate shall be recorded in the Register of Inhibitions and the Register of Abbreviates of Adjudications, at Edinburgh, and the keepers of said Registers, if required, shall grant certificates of such registration in the form of Schedule (), hereto annexed." Not only are these references to the schedules left blank, but no schedules are provided to which reference could be made. If similar schedules had been provided by the old Act, it is possible