Encyclopaedia Britannica; or, A dictionary of arts and sciences, compiled upon a new plan … > Volume 2, C-L

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to the end that the fubjeS: conveyed may be effe&uaHy
vefled in the grantee. Thefe adjudications may be alfo
directed a gain ft the heir of the granter, upon a charge to
enter. Here there is no place for a legal revertxon; for,
as the adjudication is led for completing the right of a
fpecial fubjedt, it mutt carry that fubjedt as irredeema¬
bly as if the right had been voluntarily completed.
9. AH adjudications led within year and day t>f that
one which has been fhade firfteffedtnal by feifin (where fei-
dfn is necefiary) or exadt diligence for obtaining feitin, are
preferable pari paffu. The year and day runs from the
date of the adjudication, and not of the feifiin or diligence
for obtaining it. After the days of that period, they are
preferable according the their dates. All the co adjud-
gers within the year are preferable paripaffa as if one ad¬
judication had been led for all their debts. This makes
the feifin or diligence on the firft adjudication a common
right to the reft, who muft therefore be refund to the
owner of that diligence his whole expence laid out in
Carrying on and completing it. And thotigh that lirft
adjudicadon fhould be redeemed, the diligence upon ftftill
fubfifts-as to the reft. This pari paffu preference, how¬
ever, does not deftroy the legal preference of adjudicati¬
ons led on debit a fundi. See Tit. xv. 15. Nor does it
take place in adjudications in implement.
10. Before treating of judicial fales of bankrupts eftates,
•the nature of fetjueftration may be ftiortly explained,
which is a diligence that generally ufhers in aftions of
fale. Sequeftratioo of lands is a judicial adt of the coart
of Seflion, whereby the management of an eftate is put
into the hands of a fadtor or fteward named by the court,
who gives fecurity, and is to be accountable for the rents
to all having intereft. This diligence is competent, ei¬
ther where the right of the lands is doubtful, if it be ap
plied for before either of the competitors has attained pof-
leftion ; or where the eftate is heavily charged with the
debts: But, as it is an unfavourable diligence, it,is ndt
admitted, unlefs that meafure Hull appear neceflary for
the fecurity of creditors. Subjedts, not brought before
the court by the diligence of creditors, cannot fall under
dequeftratiort ; for it is the competition of creditors which
alone founds the jurifdidlion of the court to take the
difputed fubjedt into their pofleffion.
11. The court of Seffion who decrees the fequeftration
Has the nomination of the fadtor, in which they are di-
redted by the recommendation of the creditors. A fadtor
appointed by the Seflion, though the proprietor had not
b?en infeft in the lands, has a power to remove tenants.
Judicial fadtors muft, within fix months after extradting
their fadtory, make up a rental of the eftate, and a lift
of the arrears due by tenants, to be put into the hands
of the clerk of the procefs, as a charge againft themfelves,
and a note of ftlch alterations in the rental as may after¬
wards happen; and muft alfo deliver to the clerk annually
a fcheme of their accounts, charge and difeharge, under
heavy penalties. They are, by the nature of their office,
bound ro the fame degree of diligence that a prudent man
adhibits in his own affairs; they are accountable for the
Intereft of the rents, which they either have, or by dili¬
gence might have recovered, from a year after their fall-
iog due. As it is much in the power of thofe fadtors to
w.
take advantage of the neceiutiesof creditors, by purcha-
fing their dffits at an undervalue, all fuch purchafes made
either by the fadtor himfelf, or to his behoof, are decla¬
red equivalent to an acquitance or extindtion of the debt.
No factor can warrantably pay to any creditor, without
an order of the court of Sellion ; for he is, by the tenor
of his commiffion, diredted to pay the rents to thofe who
'{hal! be-fqund to have heft right to them. Judicial fac¬
tors are intitled to a falary, which is generally ftated at
five per cent, .of their intromiflions; but it is feldom af-
certained till theirofficc expires, or till their accounting ;
that the court may modify a greater or fmaller falary, or
.none, in propo’rtion to the fadter’s integrity and diligence.
Many cafes occur, where the court of Seflion, without
fequeftration, name a fadior to preferve the rents from
perifhing; e. g. where an heir is deliberating whether to
enter, where a minor is without tutors, where a fuccefli-
on opens to a perfon refiding abroad ; in all which cafes,
the fadtor is fubjedled to the rules laid down in adt of fe-
derunt, Feb. 13. 1730.
12. The word bankrupt is fometimes applied to per-
fons wbofe funds are not fufficient for their debts ; and
fometimes, not to the debtor, but to his eftate. The
court of Seflion are empowered, at the fuit of any real cre¬
ditor, to try the value of a bankrupt’s eftate, and fell
it for the payment of his debts.
13. No procefs of fale, at the fuit of a creditor, can
proceed without a proof of the debtor’s bankruptcy, or at
leaft that his lands are fo charged with debts, that no
prudent perfons will buy from him; and therefore the
fummons of fale muft comprehend the debtor’s whole e-
ftate. The debtor, or his apparent heir, and all the real
creditors in poffeflion, muft be made parties to the fuit ;
but it is fufficiefit if the other creditors be called by an
edidfal citation. The fummons of fale contains a con-
clufion of ranking or preference of the bankrupt’s credi-.
tors. In this ranking, firft andfecond terms are afligned
to.the whole creditors for exhibiting in court (or produ¬
cing) their rights and diligences; and the decree of certi¬
fication proceeding thereupon, againft the writings not
produced, has the fame effeft in favour of the creditors
who have produced their rights, as if that decree had pro¬
ceeded upon an aflion of reduftion-improbation. See
Tit xxx. 5. The ranking of thefe creditors muft be
concluded by an extra&ed decree, before the aftual fale.
The irredeemable property of the lands is adjudged by
the court to* the higheft offerer at the , fale. The credi¬
tors receiving payment muft grant to the purchafer abfo-
lute warrandice, to the extent of the fum received by
them ; and the lands purchafed are declared diftnirdened
of all debts or deeds of the bankrupt, or his anceftors,
either on payment of the price by the purchafer to the
creditors according to their preference, or on confignation
of it, in cafe of their refufal, in the hands of the magi-
ftrates of Edinburgh : The only remedy provided to fuch
creditors as judge themfelves hurt by-the-fale of divifion
of the price, even though they (hould be minors, is an
aAion for recovering their fhare of the price againft the
creditors who have received it.
14. The expence of thefe proceffes is diffim fed by
the faftor out of the rents in his hands ; by which the
whole