Scottish Court of Session Decisions

The Bankruptcy (Scotland) Act 1913 (3 and 4 Geo. V, cap. 20) enacts—Section 11—“Sequestration may be awarded of the estate of any person in the following cases … 2nd. 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.… ( b) On the petition of a creditor or creditors qualified as hereinafter mentioned.” … Section 30—“The deliverance awarding sequestration shall not be subject to review; but … any creditor … may, within forty days after the date of such deliverance, present a petition to the Lord Ordinary setting forth the grounds for recal, and praying for recal … and the Lord Ordinary shall … order a copy of the petition for recal and of his deliverance to be served on the parties who petitioned or concurred in the petition for sequestration.… and shall require them to answer within a specified short time, … and on the expiration of the time so fixed he shall proceed to pronounce judgment.…” Section 97—“The act and warrant of confirmation in favour of the trustee shall ipso jure transfer and vest in him … the whole property of the debtor to the effect following:—(1) The moveable estate and effects of the bankrupt wherever situated, so far as attachable for debt or capable of voluntary alienation by the bankrupt, to the same effect as if actual delivery or possession had been obtained, or intimation made at that date, subject always to such preferable securities as existed at the date of the sequestration and are not null or reducible. (2) The whole heritable estate belonging to the bankrupt 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 and recorded at the date of the sequestration, and as if a poinding of the ground had then been executed, subject always to such preferable securities as existed at the date of the sequestration and are not null and reducible.… Provided always that such transfer and vesting shall have no effect upon the rights of the superior … nor upon the rights of the creditors of the ancestor (except that the act and warrant of confirmation shall operate in their favour as complete diligence). …”

Egidia Charlotte Menzies, sometime residing at Camserney Cottage, Aberfeldy, now at 23 Royal Avenue, Chelsea, London, W., and Henry Atkin, Limited, gun and rifle manufacturer, 41 Jermyn Street, St James', London, both creditors for over £50 of the deceased Sir Neil Menzies, Bart., petitioners, with the consent and concurrence of John Hamilton Buchanan, C.A., Edinburgh, trustee on the sequestrated estates of Dame Susan Harriet Menzies, widow of the said Sir Neil Menzies as his successor, concurrer, presented a petition for the recal of the sequestration of the estates of the said Sir Neil. Mrs Elizabeth Jane Poutz, widow, carrying on business under the name of Elisa Poutz, Court milliner, at 27 Dover Street, Piccadilly, London, and seven others, all creditors of Sir Neil for over £50, respondents, lodged answers.

Sir Neil Menzies died on 21st December 1910. By his will, dated 15th July 1909 he appointed his widow, Dame Susan Harriet Menzies, his executrix and universal disponee and legatee. He left at his death estate both heritable and moveable. His heritable estates consisted of the lands and barony of Menzies, the lands and barony of Rannoch, and the lands of Foss, in the county of Perth. To all of said heritable estates Lady Menzies took right under the will, having a vested personal right to the same at and from the death of Sir Neil. She entered and completed heritable title by virtue of notarial instrument, dated and recorded in the General Register of Sasines 20th March 1911. These estates were thus taken out of the hereditas jacens of Sir Neil. To the whole moveable estate his said widow took right by virtue of the universal legatory clause of his will, and as executor-nominate she confirmed thereto by virtue of confirmation in her favour dated 24th April 1911. Thereafter Lady Menzies entered into personal possession and enjoyment of the heritable and moveable estates. Within one year after Sir Neil's death Lady Menzies created heritable debt by bonds and dispositions in security upon the estates of Menzies, Rannoch, and Foss. One of these bonds was granted by Lady Menzies on 11th July 1911 for £26,750 in favour of the National Guardian Investment Company, Limited, carrying compound interest at 20 per cent. per annum. Lady Menzies granted a voluntary trust deed for creditors in favour of the concurrer, dated 10th December 1912 and recorded 8th March 1913. She was sequestrated on 26th November 1914 upon her own petition, and the concurrer was elected and confirmed trustee on her estate.

On 29th August 1912 the respondent Mrs Poutz raised an action against Lady Menzies as executrix of Sir Neil and as an individual for £2672, being a debt due to her by Sir Neil at the date of his death. Decree therein was obtained on 5th March 1913 and extracted on 28th May 1913. By decree dated 26th November and extracted 10th December 1913 she obtained adjudication directed against, first, Lady Menzies, and, second, the concurrer as trustee under the said trust deed. The extract decree was registered in the Register of Sasines on 13th December 1913.

On or about 2nd February 1915 the said Mrs Poutz presented a petition for sequestration of the estates of the said Sir Neil Menzies, founding upon the debt of £2672 already referred to. The said petition was

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opposed by the concurrer as trustee on the sequestrated estates of the said Lady Menzies.

On 9th April 1915 the Lord Ordinary on the Bills in Vacation ( Ormidale) granted sequestration of the estates of the said Sir Neil Menzies, and upon 13th May John Stuart Gowans, C.A., Edinburgh, was elected and confirmed trustee thereon.

Opinion.—“…. There being no failure in respect of any of the statutory requisites, and there being no tender of payment of the debt due to the petitioning creditor, the petitioner maintains that the Court has no discretion in the matter, and that sequestration must be awarded— Joel v. Gill, 1859, 21 D. 929; Stewart v. Stewart&Macleod, 1891, 19 R. 223, 29 S.L.R. 199. That this is so in the case of a living debtor is certain, but it is more doubtful in the case of a deceased debtor. The respondent referred to the cases of Milne & Company v. Milne, 1850, 12 D. 1007, and M'Letchie v. Angus Brothers, 1899, 1 F. 946, 36 S.L.R. 757. Milne was decided prior to Joel v. Gill at a date when there appears to have been a fluctuation in opinion as to whether even in a case of a living debtor the Court had a discretion or not. In M'Letchie, while the proceedings were for the recal of sequestration, the considerations distinguishing the sequestration of a living from that of a dead debtor noted both by Lord M'Laren and Lord Kinnear. would appear to apply with equal force to the petition for sequestration itself. Lord Pearson in Petn. Arthur, June 31, 1903, 10 S.L.T. 550, thought that in awarding sequestration in the case of a deceased debtor the Court had no discretion, but M'Letchie's case does not appear to have been cited to his Lordship. Assuming, however, without deciding that the question is one of expediency, I cannot hold that the respondent has stated any good ground why I should refuse the petition. The sequestration of Lady Menzies is not a simple process for the distribution of Sir Neil's estate among his creditors, but a process in the main at anyrate for the distribution of her own estate among her own creditors. Her trustee is not at all in the position of the petitioner for recal in M'Letchie's case, namely, an executor on the deceased's estate, nor does he aver that he has sufficient funds wherewith to pay the creditors of Sir Neil. It is obvious, moreover, that Lady Menzies' own proper creditors, and her trustee as representing them, have a different interest from the creditors of Sir Neil, for example, with regard to the realisation of the barony of Menzies. Her trustee has not taken up that estate, the bond granted by Lady Menzies in favour of the National Guardian Investment Company, Limited, being for so large a sum as to extinguish all possibility of any reversion for the other creditors of Lady Menzies. But that bond having been granted within year and day of Sir Neil's death in no way affects Sir Neil's creditors, and it is quite possible that the estate could be sold at such a price as would, after satisfying the bonds granted by Sir Neil himself, leave a surplus for distribution among his proper creditors.

It is not unlikely that difficult and delicate questions may arise between the respondent and any trustee appointed on Sir Neil's estate. The action of declarator raised by the respondent makes that clear, but that is no good reason for refusing to award sequestration. The raising of the action also indicates that they are not questions which can be satisfactorily disposed of in Lady Menzies' sequestration. Some of them may be obviated if a trustee is appointed on Sir Neil's estate. Accordingly in my opinion the present petition would in no event fall to be refused on the ground of expediency.

That being so, the respondent must show that although all the statutory requisites are satisfied the petition is still incompetent. He points out that in the cases of Royal Bank v. Scott, Smith, Stein, & Company, January 20, 1813, F.C., and Goetze v. Aders, &c., 1874, 2 R. 150, 12 S.L.R. 121 ( cf. Galbraith v. Grimshaw, 1910 AC 508), although all the requisites were present, sequestration was refused. That was on the ground that where an effectual sequestration of a debtor's estates has already been awarded it is incompetent to grant a second award of the same estate. The respondent maintains that that is exactly the position of matters here; that what were the estates of Sir Neil on his death became the property of his widow, who was his universal legatory and executrix, and that the sequestration of Lady Menzies' estate has therefore vested in him the whole estates of Sir Neil. In my opinion that is not so, to the effect at anyrate of rendering sequestration of Sir Neil's estate for distribution among Sir Neil's creditors incompetent. The authorities on which the respondent relies, beginning with the case of M'Lachlan v. Bennet, 4 S. 717, 3 W. & S. 449, no doubt establish that on the sequestration of an heir's estates the general adjudication of these estates under the Bankruptcy Statutes in favour of the trustee, if the sequestration takes place within three years from the ancestor's death, operates complete diligence in favour of the creditors of the ancestor so as to give them a preference over the creditors of the heir. Effect is given in this way to the Act 1661, cap. 24, to which I refer. There was no express statutory provision bringing about this result in the Bankruptcy Act in force at the date of M'Lachlan's case, but in the Bankruptcy Act of 1839 (2 and 3 Vict. cap. 41), sec. 79, dealing with the vesting of the heritable estate in the trustee, there is the following clause—‘(4) Provided always that such transfer and vesting of the heritable estate shall have no effect … upon the rights of the creditors of the ancestor (except that the act and warrant of confirmation shall operate in their favour as complete diligence).’ That provision has been repeated in the Bankruptcy Statutes of 1856, sec. 102, and 1913, sec. 97.

In his Commentaries on the Act of 1839 Professor Bell makes this observation (p. 168)—‘The act and warrant in favour of the trustee operates by this section as complete diligence in favour of the creditors of the ancestor who shall claim in the sequestration in any question with the creditors

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of the heir relative to land. The reason and principle of this rule would seem to extend it to the case of moveables also.’

Mr Alexander in his Digest (p. 92) puts it thus—‘To remove the doubt that occurred under the former statute whether creditors of the ancestor of a bankrupt could found upon the trustee's confirmation if within three years of the ancestor's death as equivalent to an adjudication in their favour, and thus give them the preference provided to them by the Act 1661, cap. 24, it has been expressly provided,’ &c., and he then refers to section 79.

No case has occurred in which the precise effect of the provision has been decided, but I take it to be the law that if any creditors of the ancestor in fact claim in the sequestration of the heir their right to a preference in a question with the heir's creditors over so much of the heir's estates as he has succeeded to is undoubted. It seems to me at the same time to show that while the ancestor's creditors become the heir's creditors to some extent they do not do so in an absolute sense. The heir becomes liable to pay their debts, not to the exhaustion of his whole estate, but only so far as his estate includes what was his ancestor's estate. Prior to the Act of 1839 it must always have been, if not the only, at least the most convenient course for the ancestor's creditors to follow in order to make good their preferences, because sequestration of a deceased debtor's estate was up to that date not possible, and it may be that it will prove in the present case that it would have been a sufficient and appropriate proceeding for the petitioner to take. But I cannot hold that the petitioner is bound to rest satisfied with lodging a claim in Lady Menzies' sequestration. I cannot hold at this stage that there is such complete identity of Sir Neil's estates with Lady Menzies' estates as to bring the present case within the principle of the decision in Goetze v. Aders, &c.

The case of Christie v. Royal Bank, 1839, 1 D. 745, to which I was referred, was concerned with somewhat special questions as to limitations imposed by the Act 1661, cap. 24, on an heir's right to grant dispositions. Hoskins v. Christie, 1845, 8 D. 167, while not a decision on any point of law, undoubtedly contains many dicta very clearly ascertaining the liability of a bankrupt heir for his ancestor's debts and the consequent liability of his trustee in distributing the estate vested in him to give effect to preferences secured by the ancestor's creditors. The question in the case was whether certain creditors on the sequestrated estates of the heir were entitled to the character of ancestor's creditors, and therefore to the preference admittedly attaching to that character by virtue of the Act 1661, cap. 24. In considering that question it is the assumption of the opinions that the question fell to be determined in the sequestration, that the trustee represented creditors of the ancestor as well as creditors of the heir, and that the heir's estate included not only estate acquired by himself but also the estate which he had taken by representation from his ancestor. It does not appear to me that anyone disputed these propositions, or that anyone had an interest so to do; but they do not establish such complete and absolute identity of the heir's estates with the ancestor's estates as to make the sequestration of the former render incompetent the sequestration of the latter. On the contrary, while it was doubtful whether, the ancestor having died before the Act of 1839 came into operation, his estates could be sequestrated, I note that Lord Murray (p. 211) seems to have thought that such a sequestration might have tended to clear up what he describes as a difficult and intricate case. Lord Fullerton in Menzies v. Murdoch, 1841, 4 D. 257, at p. 264, says—‘The object of the statute’ ( 1661, cap. 24) ‘was to render the estate of the ancestor available exclusively to the creditors of the ancestor.… The object and effect of the statute is to separate the estate of the ancestor from that of the heir and to render the former the subject of division exclusively among the creditors of the ancestor, leaving only the residue to the creditors of the heir.’ Now that was said, no doubt, with reference to the sequestration of the heir at a time when the deceased ancestor's estate could not be sequestrated. But it appears to me at least to justify, now that it is competent to sequestrate the ancestor's estate, the view that the present sequestration is not only competent but convenient.

Under the Act 1661, cap. 24, the petitioner having within three years of her debtor's death executed against his estate an effectual adjudication, is in no way, it seems to me, benefited by section 97 of the 1913 Act. Her diligence was complete without the aid of the statutory adjudication. Moreover, the sequestration of Lady Menzies' estates is more than three years subsequent to the death of Sir Neil, and as I read the case of M'Lachlan v. Bennet it may well be argued does not therefore effect the complete diligence in favour of the ancestor's creditors which gives them a preference in the heir's sequestration over the creditors of the heir. That is not a point, however, falling to be determined at this stage.

Section 103, which provides that sequestration is to be equivalent to a decree of adjudication, and that when the sequestration is dated within year and day of any effectual adjudication the estate is to be disposed of in the sequestration, deals, it seems to me, with adjudications of the estates of the bankrupt at the instance of the heir's creditors, and not with adjudications of the ancestor's estates by creditors of the ancestor.

Section 102 of the 1856 Act, which is section 97 of the 1913 Act, was considered in the case of Millar's Trustees v. Horsburgh, 1886, 13 R. 543, 23 S.L.R. 363, and while the Lord President and Lord Shand took different views (which were expressed merely obiter) of the meaning and effect of the clause—‘except that the act and warrant of confirmation shall operate in their favour as complete diligence’—the former, as matter of decision, construed the clause immediately preceding it as safeguarding

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to creditors of the ancestor not only all their rights—to the effect that they are to stand exactly in the same position as they would have done if the estate had not been vested in the trustee in the sequestration—but also all their remedies by way of diligence. If that be so, then the right of the creditor of the ancestor to have the estates of his proper debtor sequestrated remains unaffected by the vesting of the heir's estates in the trustee in his sequestration.

Provision is made (section 101) where the heir has completed his title to any part of his ancestor's estate for the transfer of such estate to the trustee on the sequestrated estates of the deceased ancestor. After all what truly passes to the heir is not the whole estates of his ancestor, but only the reversion of them, and there is authority for the proposition that executry funds are not the executor's private property, but remain the ancestor's funds until the latter's debts are paid— Rough's Trustees v. Miller, 1857, 19 D. 305, Lord Neaves, p. 309. To that limited extent the executor, being eadem persona cum defuncto, is a trustee for the ancestor's creditors. There is, or may be, estate in existence which is still earmarked as the estate of the ancestor. I cannot assume at this stage that there is not.

On the whole matter the respondent has, in my judgment, failed to show that it is incompetent to award sequestration of the deceased Sir Neil Menzies' estate, and I shall therefore grant the prayer of the petition to that extent.”

The petitioners and concurrer now presented this petition for recal of the sequestration of the estates of the said Sir Neil Menzies. The said John Stivan Gowans appeared by minute stating that he intended to watch the case.

On 30th June 1915 the Lord Ordinary on the Bills ( Anderson) refused the petition for recal.

Opinion.—“… It seems to me that the proper way in which I should discharge my duty in a question of this sort, where I am really asked to review the decision of a brother Judge exercising co-ordinate jurisdiction with myself, is this—If Mr Mackay had been able to come forward and say that since Lord Ormidale's judgment some circumstances had emerged which put a new complexion upon the case, but which were not before Lord Ormidale, then I should have had no difficulty if the circumstances were sufficiently clamant in giving effect to. the change of situation and recalling the decision of Lord Ormidale. In the next place, if since Lord Ormidale decided the case a decision of the Inner House of this Court had been pronounced conflicting with the views expressed by Lord Ormidale, I should of course have given effect to the decision in the same way. Probably, in the third place, if it were pointed out to me that a decision of the Inner House of this Court touching the question which Lord Ormidale decided, and laying down law differing from that to which he had given effect, had not been cited to Lord Ormidale, it might very well be that I should have taken that into account and have decided the question in the way suggested by the petitioners.

But it is the case that I have had submitted to me just the same questions which were submitted to Lord Ormidale, supported by the same arguments and buttressed by the same decisions. It is true that Mr Mackay quoted a few additional authorities, but they are of no different effect from those upon which Lord Ormidale proceeded. Accordingly, while it may be competent for me to reconsider those questions, those arguments, and those decisions, and to reach a conclusion different from that of Lord Ormidale, I do not think it is proper or seemly that I should do so. Without, therefore, expressing any opinion on the questions—difficult and important questions—which are here raised, I shall in order to allow Mr Mackay to go to the Inner House—for it is a necessary step to that end that this process should pass before me in this form—refuse the petition, and shall find the respondents entitled to expenses and the minuter entitled to a watching fee.”

The petitioners and concurrer reclaimed, and argued—The ancestor's sequestration was incompetent. Sequestration of a dead debtor's estates was allowed under the Bankruptcy (Scotland) Act 1913 (3 and 4 Geo. V, cap. 20), secs. 11 and 12, but it was peculiarly open to abuse, and slight inexpediency or the prior existence of another means of working out the distribution of the estate would justify refusal or recal— Elder v. Thomson, 1850, 12 D. 994, per Lord President Boyle at pp. 998, 999. The whole policy of the Bankruptcy Act was against double sequestration—section 16. There was a complete remedy here in the heir's sequestration. It was not obligatory in the case of a dead debtor to grant sequestration when the statutory requisites concurred. The contrary was not decided in the Commercial Bank of Scotland v. Scott's Executrix (quoted in M'Laren's Bill Chamber Practice at p. 258), and the dicta of Lord M'Laren (at p. 948) in M'Letchie v. Angus Brothers, 1899, 1 F. 946, 36 S.L.R. 757, were contrary to the dicta in the Commercial Bank case. In the case of a dead debtor, when there was not and could not be any estate to sequestrate, sequestration might and ought to be refused even although the statutory requisites concurred. Here the whole estate of the ancestor had passed to the heir, and had vested in her on a statutory title, and that could not be superseded now— Royal Bank of Scotland v. The Assignees of Stein, Smith, & Company. F.C., January 20, 1813; Goetze v. Aders, 1874, 2 R. 150, 12 S.L.R. 121; Galbraith v. Grimshaw, 1910 AC 508. Gardner v. Woodside, 1862, 24 D. 1133, was not in point, for it was not clear, as it was here, that there was not and could not be any estate to sequestrate. In any event, while the Court might not have a discretion in awarding sequestration, it certainly had in a petition for recal— Blair v. North British and Mercantile Insurance Company, 1889, 16 R. 325, per Lord Shand at p. 331 and Lord Adam at p. 332, 26 S.L.R. 213—and would recal a sequestration if no one's rights were prejudiced thereby. Here the creditors of the

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ancestor had as complete protection under the heir's sequestration as they could get if both sequesirations were allowed to stand. None of the ancestor's assets were outwith the heir's sequestration, and the only questions were of ranking and were within the heir's sequestration. Thus the heir was not a trustee for the ancestor's creditors, and the ancestor's estate was not a trust estate outwith the heir's sequestration—Bell's Comm., i, 769; Globe Insurance Company v. Mackenzie, 1850, 7 Bell's App. 296, per Lord Brougham at p. 319; Taylor & Ferguson, Limited v. Glass's Trustees, 1912 S.C. 165. per Lord President Dunedin at p. 169, 49 S.L.R. 78; Bank of Scotland v. Liquidators of Hutchison, Main, & Company, Limited, 1914 SC (HL) 1, per Lord Kinnear at p. 5 and p. 7, per Lord Shaw at p. 15, 51 S.L.R. 229. The diligences of the ancestor's creditors were preserved, leaving only a question of ranking— M'Lachlan v. Bennet, 1826, 4 S. 712 [N.E.717], 3 W. &S.449; Hoskins v. Christie, 1845, 8 D. 167; Millar's Trustees v. Horsburgh, 1888, 13 R. 543, 23 S.L.R. 363; Athole Hydropathic Company v. Provincial Assurance Company, 1886, 13 R. 818, 23 S.L.R. 570; Traill's Trustees v. Free Church of Scotland and Others, 1915 S.C. 655, 52 S.L.R. 524; Campbell v. Edinburgh Parish Council, 1911 S.C. 280, 48 S.L.R. 193—and the only questions raised were of ranking. The Bankruptcy (Scotland) 1913, sec. 97, did not apply to the ancestor's creditors' “rights” to sequestrate. “Rights” in that section referred to particular pieces of property. That was shown by sections 103 and 114. The National Guardian bond was ineffectual as against the ancestor's creditors under the Act 1661, cap. 24, and effectual against the heir's creditors, but the trustee in the heir's sequestration must give effect to that Act; That involved no conflict of interest in him foreign to his office; he must act judicially, subject to a cheap and expeditious right of appeal on the part of a dissatisfied creditor. Realisation and distribution were equally facile in either sequestration. The double sequestration involved additional expense, waste of expense already incurred by the heir's trustee, and conflict of jurisdiction between the two trustees.

Argued for the respondents—The ancestor's sequestration was competent. The statutory requisites having concurred there was no discretion in the Court to refuse sequestration or to consider questions of expediency— The Commercial Bank of Scotland, Limited v. Scott's Executrix, 1911 (reported in M'Laren's Bill Chamber Practice at p. 258). The absence of apparent estate was not sufficient to render sequestration incompetent— Gardner v. Woodside ( cit.). In any event there was estate to sequestrate, for the National Guardian Investment Company would have to value and deduct the value of their security in the heir's sequestration, while since their bond was ineffective in the ancestor's sequestration there must be estate in the ancestor to the amount of their security. Further sequestration of the heir did not deprive the ancestor's creditors of any of their rights. These rights included the right to sequestrate—Bankruptcy Act 1913, section 97; Miller's Trustees v. Horsburgh ( cit.). The ancestor's sequestration was highly expedient. The ancestor's creditors' rights were not preserved in the heir's sequestration alone. M'Lachlan v. Bennett ( cit.) and Hoskins v. Christie ( cit.) were not in point, as sequestration of a dead debtor was not competent when they were decided, and there were dicta in Rough's Trustees v. Miller, 1857, 19 D. 305 ( per Lord Neaves at p. 309) contrary to the dicta in these cases. The respondents would be prejudiced if the ancestor's sequestration were recalled. Quoad moveables of the ancestor to which he had confirmed and which were identifiable, the heir acted as a trustee for the ancestor's creditors, and such estate was not carried into the heir's sequestration by his trustee's act and warrant—Bell's Principles, section 1934. The trustee in a sequestration merely received the reversion or radical right. Here all the heir's trustee received was a quantum, which did not include the security in the National Guardian bond. The said bond was void under the Act 1661, cap. 24, in a question with the ancestor's creditors. The estate which would vest in his trustee was therefore a quantum including the security in the said bond—Bell's Comm., i, 764 et seq. The question was not one of preference, but of the assets carried to the one trustee as against the other. The heir's trustee could not therefore vindicate the estate free of the National Guardian bond. Even if he could reduce the said bond, he could only do so to the prejudice of the heir's creditors and to the advantage of the ancestor's. His duty, however, was to act for the whole body of creditors whom he represented—Bankruptcy Act 1913, sections 8 and 9. Further, the trustee's paramount duty was to realise the assets for the creditors. Only the ancestor's trustee could give a clear title to the bonded estate, because he could bring a declarator and sell without the consent of the bondholder; the price obtained for the estate might be seriously affected; the ancestor's trustee could sell by private bargain; the heir's trustee was always subject to the bondholder's veto—Bankruptcy Act 1913, sections 108, 109, 110. Apart from agreement with the heir's trustee, the National Guardian Investment Company could poind the ground, and the poinded goods would be outwith the sequestration— Campbell v. Edinburgh Parish Council ( cit.). As against the ancestor's trustee there was no such preference possible, and no necessity for such an agreement.

At advising—