[764. Is there now any conveyancing distinction between burgage and feudal subjects?

No; the Conveyancing Act abolishes the distinction so far as regards conveyances and completion of title. Conveyances may be either in the burgage or feu forms provided by the Consolidation Act. A procuratory or clause of resignation is not to be inserted, or if inserted, it is to be held pro non scripto. But writs affecting land held burgage before the Conveyancing Act are to be recorded in the Burgh Register of Sasines, §§ 25 and 26.]

XII. TRUST-DISPOSITION FOR CREDITORS.

765. What are the leading objects of the trust-disposition for creditors?

(1) The vesting of the estate and effects of the granter in the person of a trustee for behoof of the creditors; (2) the payment of the granter's debts; and (3) the discharge of the granter, and the reconveyance to him of any reversion after payment of the debts and the expenses of the trust.

766. Is it necessary, in order to make a trust-deed effectual

against future creditors, that the trust-creditors be enumerated in the deed, and the amount of their debts therein specified? State the reason.

No; the principle being that the trust-estate is vested in the trustee for behoof of the acceding creditors as a right under reversion; and it is only upon the reversionary right, after the purposes of the trust have been fulfilled, that future creditors are entitled to rely.'(c)

767. May non-acceding creditors proceed by separate diligence against the trust-estate; or may the trust-deed be superseded by a sequestration at their instance ? (1) Where the trust-deed, being a disposition omnium bonorum and containing no such conditions or limitations as shall in any

1 Bell's Com. ii. 385.

(c) It is essential, however, that the debtor be divested, and the trustee vested habili modo with the real right to the estate.

way interfere with the beneficial interests of the creditors, has been granted before the commencement of diligence, and the transference has been completed sixty days at least before the granter's notour bankruptcy, the non-acceding creditors cannot disturb the trust by separate diligence.1 (2) But the trust-deed is no bar to sequestration, which completely supersedes it."

768. What is the purpose of the deed of accession?

The deed of accession is an instrument executed by the creditors approving of the trust, and acquiescing in the plan of management, disposal, and distribution of the estate set forth in the trust-conveyance; the effect of the deed being to render the conditions binding on them, and to prevent them from taking measures, by diligence or otherwise, for recovery of their debts independently of the trust.

769. Is a creditor, after signing the deed of accession, bound by the trust arrangement, if some of the creditors have refused to concur in the deed?

No; because the deed of accession being a mutual contract, it is an implied condition that the accession shall be general, and that all shall be bound or none.3

770. Is the trustee, who is infeft and in possession of the trust-property, personally liable for implement of the truster's obligations to his superior?

Yes; because by taking infeftment the trustee adopts the feu, and he cannot refute invito domino.*

771. Does the conveyance of land to a trustee for creditors make the debts due to them heritable, though originally moveable?

No; unless the trust is so conceived as to vest in the creditors a pro indiviso real right in the estate."(d)

1 Bell's Com. ii. 387.

2 Bell's Com. ii. 390.

3 Watson, M. 6397; Bell's Com.

ii. 395.

4 M. of Abercorn, 16th Dec. 1835, 14 S. 168.

5 Ivory's Note on Ersk. 2, 2, 15.

(d) Even then the principle laid down by Erskine in the passage referred

XIII. JUDICIAL TRANSFERENCE.

(1.) Sequestration.

772. In what cases may sequestration be awarded?}

Sequestration may be awarded of the estate of any person in the following cases :—

(1.) In the case of a living debtor, subject to the jurisdiction of the Supreme Courts of Scotland-1st, on his own petition, with the concurrence of one creditor whose debt amounts to not less than fifty pounds, or of any two creditors whose debts together amount to not less than seventy pounds, or of any three or more creditors whose debts together amount to not less than one hundred pounds, whether such debts are liquid or illiquid, provided they are not contingent; and 2nd, on the petition of a creditor or creditors, qualified as above mentioned, provided the debtor be notour bankrupt, and have within a year before the date of the presentation of the petition resided or had a dwelling-house or place of business in Scotland; or otherwise, in the case of a company being notour bankrupt, if it have within such time carried on business in Scotland, and any partner have so resided, or had a dwelling-house, or if the company have had a place of business in Scotland.

(2.) In the case of a deceased debtor, who, at the date of his death, was subject to the jurisdiction of the Supreme Courts of Scotland-1st, on the petition of a mandatory, to whom he had granted a mandate to apply for sequestration; and 2nd, on the petition of a creditor or creditors qualified as before mentioned.'

773. What persons are declared by statute to be ineligible to the office of trustee?

(1) The bankrupt; (2) a person conjunct or confident with

1 19 & 20 Vict. c. 79, §§ 13, 14.

to must not be overlooked, that "As the nature of the creditor's right cannot be changed without his own consent by the debtor, the creditor must do some deed importing his acceptance of the heritable right offered by him." See also Bell's Com. ii. 5. In any case a sale of the estate would again render the debt moveable.

the bankrupt; (3) one who holds an interest opposed to the general interest of the creditors; and (4) one whose residence is not within the jurisdiction of the Court.1

774. What is the procedure for vesting the bankrupt's estate

in the trustee after his election?

(1.) The trustee lodges with the sheriff-clerk a bond of caution, signed by him and his cautioner (e) for the amount of security fixed by the creditors at the meeting for the election of a trustee.

(2.) On the bond of caution being lodged, the sheriff confirms the election, and the sheriff-clerk issues an act and warrant of confirmation, a copy of which is immediately transmitted by the trustee to the Accountant in Bankruptcy, who makes an entry of the name and designation of the trustee in the Register of Sequestrations."

(3.) The trustee, within twenty-one days after his election is confirmed, causes an abbreviate of his confirmation to be recorded in the Register of Abbreviates of Adjudications.3

775. What is the effect of the act and warrant of confirma

tion in favour of the trustee?

It ipso jure transfers to and vests in him, for behoof of the creditors, absolutely and irredeemably, as at the date of the sequestration, with all right, title, and interest, the whole property of the debtor to the effect following:

(1.) The whole moveable estate and effects of the bankrupt, wherever situated, so far as attachable for debt, to the same effect as if actual delivery or possession had been obtained, or intimation made at that date, subject to preferable securities existing at the date of the sequestration. (ƒ)

(2.) The whole heritable estate in Scotland, to the same effect as if a decree of adjudication in implement of sale, as well as a decree of adjudication for payment and in security of debt, subject to no legal reversion, had been pronounced in favour of the trustee, 3 Ibid. § 79.

1 19 & 20 Vict. c. 79, § 68.

2 Ibid. §§ 72, 73.

(e) If the creditors agree, a bond by a guarantee society may be taken instead of a cautioner; § 72.

(f) And not null or reducible.

and recorded at the date of the sequestration, and as if a poinding of the ground had then been executed, subject to preferable securities; provided that such transfer and vesting shall have no effect on the rights of the superior, nor upon any question of succession between the heir and executor of any creditor, nor upon the rights of the creditors of the ancestor (except that the act and warrant shall operate in their favour as complete diligence); and if any part of the bankrupt's estate be held under an entail, or by a title otherwise limited, the right vested in the trustee shall be effectual only to the extent of the interest in the estate which the bankrupt might legally convey, or the creditors attach.

(3.) All real estate in England, Ireland, or in any of the British dominions; provided that, as regards freehold, copyhold, and leasehold estate, the act and warrant be properly registered in the Books of the Court of Bankruptcy for the country in which the property is situated; and likewise that it be enrolled and recorded where, according to the laws of that country, conveyances would require registration or enrolment.1

776. How may the trustee complete a feudal title to lands in which the bankrupt is publicly infeft?

(1.) By charter of adjudication from the superior, and infeftment or registration of the charter in the Register of Sasines. [Such a charter is not now competent.]

(2.) By disposition from the bankrupt, which he is bound to grant, and infeftment or registration.

(3.) By expeding and recording a notarial instrument in the form of Schedule M, annexed to the Titles Act, setting forth the act and warrant, and specifying the lands, and the title by which they are held by the bankrupt; (g) but as the effect of registration of the instrument is equivalent to infeftment on a conveyance of the lands by the bankrupt, to be holden in the same manner as he held or might have held the same, confirmation by the superior

1 19 & 20 Vict. c. 79, § 102.

(g) This provision is now, by the Titles to Land Act, 1860, extended to lands held burgage, which did not previously fall under it. The mode of proceeding and effect are similar to what is here stated. See Act, § 15, and Schedule I.