over-crowded, temporary insolvent debtors' acts were passed for the purpose of emptying them, and there were permanent acts for the relief of insolvent prisoners confined for small debts. By 1 Geo. IV. c. 119, a temporary act was passed for the establishment of a general system for the relief of insolvent debtors, and a special tribunal was appointed for the purpose. This act was renewed, and improved from time to time, until its powers were much enlarged by the act 1 & 2 Vict. c. 110, commonly called "the act for abolishing imprisonment for debt." This act contains minute and careful provisions for the realization and distribution of the whole estates, real and personal, of insolvent debtors. It is in fact a complete code of bankruptcy, applicable to individuals who are not traders; and it differs from the law of cessio in this, that it is not merely a system to be taken advantage of by the debtor, but one which, like our sequestration law, can be forced upon him by his creditors. Two other statutes have more lately been added to the insolvent debtors' system, which make a species of simple bankruptcy process apply to small traders.1

The action of cessio was formerly competent only before the Inner-House of the Court of Session, and decree could not be awarded until after the debtor had been a month in prison. By act 6 & 7 Wm. IV. c. 56, the process is extended to the Sheriff Courts, and is conducted as follows:—

SECT. 2.-Practice in Sheriff Courts.

If a debtor is liable to imprisonment on a warrant following a charge to pay a civil debt, or if he be in prison under such authority, or have been imprisoned and liberated, he may apply to the sheriff for decree of cessio, and for liberation during the discussion of the application, by a petition stating his position as above, his inability to pay his debts, and his willingness to surrender his estate for behoof of his creditors. In the petition he must insert a list of his creditors, with their designations and places of residence, so far as known to him, and he must produce with it official evidence of liability to be imprisoned, or a gaoler's certificate of imprisonment, or imprisonment and liberation, as the case may be. When the debtor is a sequestrated bankrupt, he must produce a certificate signed by the trustee, or a majority of the commissioners, stating whether the bankrupt

1 5 & 6 Vict. e. 116, and 7 & 8 Vict. c. 96.- 6 & 7 Wm. IV. c. 56, §§ 2, 3.

has attended the diets for his examination, and how far he has made a full and fair surrender, and conformed with the sequestration act. The sheriff may act on this certificate, may require a special report from the trustee and commissioners, or may order them to attend for examination. The trustee and commissioners are declared to be bound, within eight days after requisition, to grant the certificate, and if they do not, the cause may be proceeded in as if it had been granted. On receiving the petition, the sheriff directs the debtor, by advertisement in the Edinburgh Gazette, to intimate its presentation, and to require the creditors to appear in court on a certain day not less than thirty days from that of the notice, and within five days. after such notice to send letters, post paid, to the creditors, according to the list in the petition, containing a copy of the Gazette notice, or, within ten days, to cite them judicially. The debtor is ordained to appear on the same day, for public examination. In the mean while, on or before the sixth day prior to the day of meeting, the debtor must lodge with the sheriff-clerk a state of his affairs, subscribed by himself, with all his books, papers, and documents, and a copy of the Gazette. If he has sent letters to his creditors, he must produce a certificate by his agent, or by a messenger or sheriff-officer, and a witness, of the date and place of putting them into the post-office, of the individual address of each, and of the payment of postage; or, if he has cited them, he must produce an execution by a messenger or sheriff-officer, and one witness.3

On the day of meeting, the debtor is to be examined by the sheriff on oath or affirmation; and if he do not answer satisfactorily and subscribe his declaration, decree will be refused in the mean time. Creditors, by moving that the debtor be examined on oath, are not debarred from adducing other evidence in opposing the cessio.5 In the general case, the sheriff is authorized to allow proof if he think it necessary, to hear verbal pleadings, and to grant the decree, or to refuse it in the mean time, or to grant it with a condition that it cannot be made effectual for some given period, stating the grounds of his decision, when he does not grant an unqualified decree of cessio.6 Where a petition is depending before him, the sheriff may, on production of a copy

A. S. 6th June 1839, § 10.-2 6 & 7 Wm. IV. c. 56, § 4. A. S. 6th June 1839, § 3.3 Ibid. § 5.—4 6 & 7 Wm. IV. § 5.—5 A. §. § 12.—6 6 & 7 Wm. IV. § 6.

of the Gazette, and proof of intimation as above, grant warrant of liberation if the debtor is in gaol, and if he is not, of personal protection for a discretionary period, provided the debtor lodge with the clerk of court a bond of caution for his appearance in court, with a penalty, to be divided among the creditors if forfeited. No interim protection can be granted until the time when parties have notice to appear, as above;2 and a decree refusing or postponing the cessio is a recall of an unexpired personal protection.3 The amount of caution is not regulated by the act, and sheriff's have been in the habit of proceeding on their own discretion. It does not appear that caution to the amount of the whole debts has been generally required, but there is no fixed criterion, and in some cases less than the amount of the Petitioning Creditor's debt has been held sufficient. The sheriff's warrants of liberation, of protection, and for bringing the debtor before him for examination, are effectual in all parts of Scotland. When decree is granted by the sheriff-substitute, a party aggrieved may reclaim within six days; and if he intimate in his reclaiming petition his desire that if the sheriff-substitute be inimical to it, it shall be laid before the sheriff, it must be transmitted accordingly.

4

SECT. 3.-Practice before Court of Session and House of Lords.

Review. The judgment of a sheriff may be brought to the Court of Session for review by a reclaiming note lodged within ten days from the date of the judgment. Twenty days are allowed where the decision is by the sheriff of Orkney. A copy of the note delivered within the period is sufficient warning to the other party. If the note be enrolled during session, it comes before the Inner-House, by which it may be remitted to the Sheriff or to the Lord Ordinary on the Bills during vacation or recess. During these periods, the case is considered by the Ordinary on the Bills, but it comes under the consideration of the Inner-House if the proceedings are not brought to a termination before it resumes its sittings.9

Original Process.-The process of cessio may be instituted in the Court of Session, with notice to the creditors by advertisement in the Gazette, and letters or citations to appear

16 & 7 Wm. IV. § 15.- A. S. § 6.-3 Ibid. § 21. See Illustrations, in the Law of Bankruptcy, &c., p. 264.5 6 & 7 Wm. IV. § 15.-6 Ibid. § 7.-7. Ibid. § 8.— Ibid. § 9.-9 Ibid. § 10.

within thirty days of the Gazette notice.' The letters or citations, with the documents to be produced to show that the debtor comes within the act, and the certificate if he be sequestrated, are under the same regulations which apply to sheriff courts. The case comes before the Inner-House, by which it may be remitted to the sheriff to examine as he does in cases commencing in his own court.3 The case on returning to the court, is considered by the Inner-House during session, and by the Lord Ordinary during vacation and recess. The judgment of the Lord Ordinary is subject to review on a reclaiming note presented within ten days. The Court of Session may grant warrant of liberation or protection on caution if applied for by petition intimated to the agent of the opposing creditors forty-eight hours before it is moved.6

4

House of Lords. An appeal from a judgment of the Inner-House to the House of Lords may be competently made within ten days, if Parliament be sitting and so many days elapse before its rising, or otherwise within six days after the commencement of the next session.7

SECT. 4.-Grounds for Refusing or Postponing Decree. The object of the process of cessio is, to relieve the debtor, whose embarrassments are caused by innocent misfortune, from the persecution of individual creditors, and to restore him to the faculty of retrieving his fortunes, on his giving up all his available property to his creditors. Keeping this policy in view, it was the practice of the Court of Session, before the late alteration of the law, and will most probably continue to be the custom of the tribunals intrusted with the process, to demand a full inquiry into the causes of the debtor's embarrassments, to withhold decree while he conceals any part of his property, and to punish him for fraud or a reckless sacrifice of the interests of his creditors, by prolonging the period of imprisonment at their discretion.

In one case where the debtor had been imprisoned two years and three months, the decree was refused, because there were sufficient grounds for believing that he was concealing funds; and the court observed that while such concealment was persevered in, length of imprisonment afforded no grounds for granting the cessio.8 Thus also the benefit

4

16 & 7 Wm. IV. § 11.-2 A. S. 24th December 1838, §§ 2, 3.-3 6 & 7 Wm. IV. § 12. - Ibid. § 13.-5 Ibid. § 14.- Ibid. § 15. A. S. 24th December 1838, § 10.-7 6 & 7 Wm. IV. § 19.- Geikie, 9th Feb. 1833. See also Taylor, 6th July 1837. Lang, 5th March 1822. Steedman, 14th May 1823. Lennox, 5th July 1825. Dougal v. Neilsons, 24th Jan. 1829.

was refused to a person who a short time before his bankruptcy paid to his children considerable sums of money (which he alleged were their portions), transferred his crop and farm-stocking to his brothers, and failed to give a proper account of other portions of his property. Though it has been held as a principle that the debtor cannot be released while he conceals funds, yet if his fraud is irretrievable, the court has been accustomed to modify the extent of the imprisonment. In one case where there had been an extensive course of fraud and extravagance, the court, "with some hesitation," awarded cessio after the imprisonment had continued three years and nine months. The want of proper books, when the dealer is of that class of tradesmen who keep books, is strong evidence of fraud, and their destruction is equivalent to proof. Among the other fraudulent circumstances on account of which cessio has been refused, are using fictitious bills, keeping false books, fraudulent appropriation of property in any form, conveying property to near relations or favoured creditors in contemplation of bankruptcy, purchasing property after embarrassments have commenced and taking the titles to children, &c.3 There are few instances of refusal on the sole ground of extravagance; an officer on half-pay being refused the benefit of cessio in the mean time on this ground, it was granted on his being appointed to full pay, and its appearing that he would lose his commission if he were unable to join his regiment.4

SECT. 5. Decree of Cessio and its Effects.

The decree acts as an assignation of the debtor's whole property to a trustee named in the decree for behoof of the creditors, and it is optional to them to compel him to grant a disposition of all his property to the trustee.5 Wearing apparel and the tools of a workman are not included in the property made over. It has been decided that the furniture of a teacher of languages is not excluded under the latter exception.7

When the debtor has an annuity, or holds an office producing an annual allowance, he must give up a portion to his

1 Lang v. Campbell, 24th May 1821.- Stephens, 20th November 1830. 3 Johnstone v. Dougald, &c., 5th March 1822. Ure v. Gilchrist, &c., 5th March 1822. Foreman v. Davidson, 10th July 1822. M'Naught v. Napier, 15th February 1823. Sutherland v. Paul, 25th May 1827. Fernie, 10th March 1835.- Arnold v. Lyon, 5th March and 2d July 1825.$6 & 7 Wm. IV. c. 56, § 16.- B. C. ii. 594.-7 Gassiot, 12th November