however, award interim aliment; but that only.(e) Where no question of status is involved, as in a case of father and son, where the relationship is admitted-there is jurisdiction.(g) In the case of illegitimate children, no question of status is raised even though the paternity is disputed.(h)

Aliment being a debt, the amount of which cannot be fixed for any definite period in certain cases, as the liability may vary with the circumstances of the payer and receiver, care should be taken that judgment is not pronounced, in such cases, in such a form as to prevent the rate being altered at any future time. (i) Debtors in aliment are liable and also for the expenses in

to imprisonment for the debt, curred in constituting it, although the amount be under that of £8, 6s. 8d., for which imprisonment for ordinary civil debts is incompetent.(k)

(e) Smith v. Smith, 11 June 1874, may find some light in some Sheriff 1 R. 1010.

(g) Tait v. White, 28 Feb. 1802, M. Appx. Aliment, No. 3; M'Kissock v. M'Kissock, 14 Feb. 1817, Hume, 6; Wilson v. Cockpen Heritors, 18 Feb. 1825, 3 S. 375.

(h) On the questions raised in the two preceding paragraphs the reader

Court cases, reported in the Journal of Jurisprudence, vol. 13, p. 351, and vol. 17, p. 427.

(2) Thom v. Mackenzie, 2 Dec. 1864, 3 Macph. 177.

(k) Cheyne v. M'Gungle, 19 June 1860. 22 D. 1490.

The process of cessio bonorum is a process by which an insolvent applies for personal protection from imprisonment, or for liberation from prison, on condition (as the name shows) of giving up to his creditors his whole property. Formerly it was competent in the Court of Session only, but since 1836 it has been equally competent in the Sheriff Court. It is a summary action, commencing by petition, and is regulated by the Act 6 and 7 Will. IV. c. 56, and relative Act of Sederunt of 6th June 1839. (1) The provisions of the Act of 1853 seem inapplicable. (n)

1. Who may Apply.-The persons who may apply for decree of cessio are those who are actually in prison for civil debt, or against whom a warrant of imprisonment has been issued, or a Small Debt decree pronounced on which imprisonment is competent, or who have been imprisoned for a civil debt and liberated. (o)

(1) Both Printed in Appendix. (n) See a full note on this point by Mr Sheriff Cook, 4 Scottish Law Magazine, p. 40.

(0) 6 and 7 Will. IV. c. 56, § 2. A debtor who applied before the in

Provided the debtor be liable

duciae of a charge of payment had expired, and therefore before any warrant of imprisonment had or could have been issued, was held to have no title; Jacobsen v. His Creditors, 18 Dec. 1874, 2 R. 227.

to civil imprisonment for the debt, the particular amount is immaterial; and there is no rule that a debtor imprisoned for aliment cannot get the benefit of cessio. (p)

Persons sequestrated under the Bankruptcy Statutes are not debarred from applying. In their case it may be as necessary as in other cases, because their creditors may refuse them personal protection.(g) But when they apply they must produce a certificate under the hands of the trustee, or of the commissioners, stating how far they have complied with the provisions of the Bankruptcy Statutes; and, in particular, how far they have made a full and fair surrender of their estates; (r) and though this certificate should be unfavourable, the case is investigated and disposed of on its own merits. (s)

2. Jurisdiction.-The application must be made to the Sheriff of the county in whose territory the applicant is domiciled. (t) If he leaves Scotland after applying he is not bound to sist a mandatory, (u) and, on the same principle, a mandatory is unnecessary though the debtor should be out of Scotland at the time of presenting the application. A foreigner coming to Scotland, owing nothing but foreign debts, will not be allowed to make the application here, though, if he were liable to imprisonment in Scotland, the case would be different. (v)

(P) Cassels v. Keddie, 27 Nov. 1852, 15 D. 124; Chisholm v. Paterson, 2 Dec. 1856, 19 D. 116.

(q) See M'Kellar v. Livingstone, 13 June 1860, 22 D. 1180.

(r) This certificate is provided for by the Act of Sederunt, § 10.

(8) M'Kellar, ut supra.
(t) Act, § 3.

(u) Hossack v. Laidlaw, 16 Dec. 1841, 4 D. 268.

(v) Shilletoe, 20 March 1862, 24 D. 848.

3. Form of Application.-The form of the petition is given in the Act of Sederunt, and sets forth, as required by the Act of Parliament, the grounds on which the debtor is imprisoned or is liable to imprisonment, his inability to pay his debts, and his willingness to surrender his estate for behoof of his creditors. The petition farther sets forth that the inability to pay has not been occasioned by fraud, but has arisen solely from misfortunes and losses. Those precise words, however, do not seem necessary, but the facts embodied by them must appear in some shape on the face of the petition, otherwise it would not be relevant.(x) In the petition the debtor gives a list of all his creditors, with their names, designations, and residences so far as known to him; and in this list he should name (with a view to saving future trouble) all who make any claim against him, founded or unfounded. The statute (§ 3) authorises the prayer of the petition to be for interim protection against the execution of diligence, and for decree of cessio bonorum. As given in the form of petition annexed to the Act of Sederunt, the prayer is somewhat fuller; and is so framed as to impose certain limits on the discretion of the Sheriff in regard to the granting of interim protection. Along with the petition is produced certain evidence of the petitioner's liability to imprisonment, (y) and the prescribed form of petition narrates what it consists of.

4. Intimation of Application.-On the petition being presented the Sheriff issues a warrant appointing the debtor to publish a notice of the presentation in the Edinburgh Gazette, requiring all the creditors to appear in Court on a

(x) See Struthers v. Her Creditors, (y) Act 6 and 7 Will IV. c. 56, § 3. 3 July 1868, 6 Macph. 980.

certain day, which must be not less than thirty days from the date of the publication of the Gazette notice. The Sheriff's order farther directs the debtor either to send postpaid copies of that notice to all his creditors within five days after the date, or, in his option, to cite them to appear in terms of law. (2) The notice must always show the name of the petitioner's agent. (a) If any of the creditors be cited, the citations must be given within ten days after the Gazette notice. (b) The Sheriff's order on the petition farther ordains the debtor to appear for public examination on the day appointed for the meeting of the creditors.

5. Production of Accounts, and of Evidence of Intimation. On or before the sixth lawful day prior to the day appointed for examination, the debtor must lodge with the Sheriff-Clerk a state of his affairs, subscribed by himself, together with all his books, papers and documents relating to those affairs. These are to be lodged for the purpose of being made patent to all concerned. (c) If the debtor fail to produce them, the Sheriff must dismiss the process, unless the debtor show that he had sufficient excuse; in which case the Sheriff may order new intimation to the creditors, or make such other order as he may think necessary. (d)

Also, on or before the sixth lawful day prior to the examination day, the debtor is to produce evidence of due. intimation, consisting of a copy of the Gazette, and either a certificate of the posting of the letters to the creditors or an execution of citation against them. It is prescribed that the certificate of the letters having been posted shall state

(2) Act 6 and 7 Will. IV, c. 56, § 4. (a) A. S. 6 June 1839, ? 2.

(b) A. S. § 3.

(c) Act, ? 4.

(d) A. S. ? 7.