and process of cessio the bankrupt's failing through misfortune be libelled, sustained, and proven." 19. Regulation of appeals to the House of Lords.]—And be it enacted, That nothing herein contained shall exclude an appeal to the House of Lords against the judgment of the said Inner House, either granting or refusing decree of cessio: Provided always, that the petition of appeal be lodged within ten days from the date of the judgment during the sitting of Parliament, if it shall continue to sit for so many days, and if Parliament be not sitting, or, if sitting, there be not so many days, then the petition of appeal shall be presented within six days after the next session of Parliament shall have met. 20. [No fee-fund dues or Government duties exigible.]—And be it enacted, That no fee fund dues shall be exigible in respect of any of the proceedings mentioned in this Act, nor shall any stamp duty or other Government duty be exigible in respect of any notices or advertisements authorized by this Act to be inserted in the Edinburgh Gazette, nor in respect of any disposition which the debtor shall be ordained to execute in terms of this Act; any law or statute to the contrary notwithstanding. 21. [Court of Session agents may practise in Sheriff Courts.]—And be it enacted, That it shall be lawful for all agents duly qualified to practise before the Court of Session to practise as agents in all Sheriff Courts in so far as relates to any of the proceedings which are authorized by this Act to be carried on before the Sheriff; provided that they shall not be entitled to payment of any other or higher fees than those legally exigible by other agents before such courts. 22. [Act may be repealed this Session.]—And be it enacted, That this Act may be repealed, altered, or amended by any Act or Acts passed during the present Session of Parliament. ACT of SEDERUNT regulating Processes of Cessio Bonorum in Sheriff Courts, raised under the Statute 6th and 7th Will. 1V. c. 56.-Edinburgh, 6th June 1839. The Lords of Council and Session having considered a report from the Sheriffs of Scotland respecting the expediency of regulating the procedure in processes of cessio bonorum in Sheriff Courts, so as to render the same as nearly uniform as possible in all the Sheriff Courts, and consistent with the enactments of the late Act, 6th and 7th Will. IV., c. 56, do hereby enact nd declare as follows: 1. All petitions for the benefit of cessio bonorum presented to the Sheriff shall be framed in terms of 6th and 7th Will. IV. c. 56, 3, and shall be in the form of schedule (A.) hereto annexed, or as near thereto as the circumstances permit. 2. When intimation is made to the creditors by letter, in terms of ? 4 of the statute, the transmission of a copy of the notice in the gazette required by the statute, addressed to each creditor, shall be held a sufficient implement of the said enactment, but the name of the petitioner's agent shall always appear in or be annexed to the said notice. 3. When the debtor avails himself of the option given by 24 to cite any of the creditors in terms of law, the citation shall be given not later than ten days next after the publication in the gazette; and the creditors shall be cited to a diet of compearance at least thirty days subsequent to the date of publication in the gazette. 4. When the petition for cessio prays also for interim protection from diligence or liberation, that prayer shall be specially intimated by the notice in the gazette; and by the letters (if any) sent to the creditors. 5. The certificate of the letters having been duly transmitted, shall in all cases contain the particular address of each letter as sent. 6. In processes of cessio, whether the creditors or any of them shall have been called by letters or cited in terms of law, the cause shall not be enrolled, nor shall any procedure take place therein, either as to the cessio, or any application for interim protection or liberation, or otherwise, until the diet of compearance in the cause; without prejudice to the debtor lodging in the hands of the clerk of court the documents specified in 4 of the statute, on or before the sixth day prior to the day of compearance. 7. If the debtor fail to lodge in the hands of the sheriff-clerk the state, books, and other documents, required by 4 of the statute, by the time therein specified, the process shall be dismissed by the Sheriff, unless he shall be satisfied that the debtor had sufficient excuse; in which case the Sheriff may order new intimation to the creditors, or make such order as he may think necessary. 8. When it is objected that all the creditors have not been called, the objector shall, at the time of stating his objection, give in a list, signed by himself or his agent, specifying the names and designations, so far as known, of the creditors alleged to be omitted; and the Sheriff shall have power to dispose of the objection as he may see cause; and, in particular, he may either dismiss the process, or give authority by a special interlocutor (which interlocutor shall not be subject to review by appeal or otherwise), to call the persons named in the said list, by citation on the petition, to compear within six days after citation, if within Scotland, or otherwise to call the said creditors, whether in Scotland or furth thereof, by letter (post paid), to compear within fifteen days after the despatch of the letter; and if it shall appear that those persons, or any of them, were not creditors, the objector shall be found liable in the expenses unnecessarily occasioned by his objection. 9. When creditors not originally called, but afterwards cited under authority of the Sheriff, as already provided in 2 8 of this Act of Sederunt, shall appear in the process, it shall be competent for the Sheriff, on the application of such creditors, in case the original diet for the creditor's examination has elapsed before such appearance, to fix another diet for his re-examination; of which diet it shall be incumbent on the debtor to give notice to each of the original creditors, or his known agent, by letter, post paid. 10. When the process has been raised by a bankrupt under sequestration, and not discharged, it shall be necessary to produce a certificate under the hands of a trustee or of the majority of the commissioners, stat ing whether the bankrupt had attended the diets fixed for his examination, and setting forth how far he has, in their opinion, or to the best of their knowledge and belief, made a full and fair surrender of his means and estate, and has in other respects duly complied with the requisites of the Bankrupt Act; reserving the effect of such certificate to be considered by the Sheriff; and further, reserving power to him to require a special report from the trustee or commissioners, or to order them to attend for examination on oath or otherwise. The trustee, or a majority of the commissioners, shall be bound, within eight days after requisition by the bankrupt, to grant such certificate, or, failing thereof, it shall be competent to proceed in the cause as if the same had been granted. 11. When the debtor shall, either in his original petition, or afterwards by incidental petition, apply for interim protection from diligence, or for liberation from prison, he shall set forth the amount of caution, and the name of the cautioner or cautioners offered by him; and a copy of the petition, when presented separately, shall be served on the agent or agents for the opposing creditors, forty-eight hours at least before being moved in court; and the Sheriff shall thereafter, on hearing parties, do therein as may seem just; the debtor always finding caution to the satisfaction of the clerk, to such amount as may be fixed by the Sheriff, before interim protection or liberation shall be granted. The bond of caution shall be according to one or other of the forms contained in Schedule (B.) annexed. 12. When the debtor shall have been put on oath at his first examination, under § 5 of the statute, the creditors shall not be thereby precluded from afterwards proving their case, in opposition to the cessio, by witnesses or other competent evidence. 13. When a proof is allowed, it is recommended that the Sheriff shall, by the interlocutor allowing it, specify, if possible, under articulate heads, the several facts to be proved by either party. 14. The Sheriff shall, in all cases, either make notes of the evidence, which notes shall form part of the process; or he may, by an interlocutor, which shall not be subject to review by appeal or otherwise, appoint the proof, or any part thereof, to be taken down verbatim by the clerk, which shall be subscribed by the witness or witnesses, and by the Sheriff, or commissioner when a commission is necessary. 15. When the Sheriff shall make a note of objections under § 6 of the statute, he shall also make a note of the answers thereto. These notes shall, before being lodged in process, be signed by the Sheriff. 16. It shall be competent for the Sheriff to hear parties viva voce, both at the time of the debtor's examination (whether on declaration or oath) and on the proof, and at such other times as may appear to him to be necessary; and in either case he shall make a note of objections and answers, as before provided. 17. It shall be competent for the Sheriff to allow answers to reclaiming petitions lodged under § 7 of the statute. 18. No appearance for an opposing creditor shall be allowed without production of the letter sent to him, the citation served, or a mandate subscribed by him. 19. It being provided by § 18 of the statute that debtors, on obtaining decrees of cessio, "shall make oath in the same terms as hitherto administered;" it is declared that when debtors take and subscribe an oath or affirmation in the form contained in Schedule (C.) hereto annexed, they shall be held to have sufficiently complied with the provisions of the statute. 20. It shall be competent for the Sheriff to ordain the debtor, whether under protection or not, to attend at any diet of court, and particularly at any diet at which an interlocutor granting or refusing the cessio may be pronounced, intimation of such order being always made to the cautioners of the debtor. 21. When any interlocutor is pronounced, refusing the cessio or granting it, subject to a declaration that it shall not be extractable or available as a protection to the debtor for a certain time, any unexpired liberation or personal protection granted to the debtor under the statute shall be held as ipso facto recalled, without prejudice to the debtor again petitioning the Sheriff for protection or liberation while the case remains in the Sheriff Court. 22. It being provided by § 17 of the statute that when the decree of cessio has been refused in hoc statu it shall be competent to the debtor at any time thereafter to make a renewed application for the benefit of the cessio, and that the "debtor shall, in all cases of a renewed application, give notice thereof in such manner as shall be appointed either by the Court of Session or Sheriff respectively;" it is enacted that it shall be competent for the debtor to make the renewed application by a minute, without argument, annexed to his original petition; and that he shall give notice thereof to all his creditors, by letters addressed to each through the post office, paying the postage thereof; and the case shall not be taken up till twenty days after the despatch of all the said letters, the fact of the despatch being established by certificates satisfactory to the Sheriff. 23. When it shall appear that any of the provisions of the statute, or of this Act of Sederunt, have been omitted or not duly complied with by the pursuer of any process of cessio, the process may be sisted till the regulations have been duly complied with in all points, if it shall appear to the Sheriff, from the nature of the omission, that this can be still done consistently with justice, and with the due execution of the statute. C. HOPE, I.P.D. FORMS. SCHEDULE (A). Form of Petition. Unto the Honourable the Sheriff of the county of the Petition of [giving the full name and designation, and present place of residence, and specifying the jail, if the debtor has been or is incarcerated]. Humbly Sheweth, That the petitioner has been charged, and that a warrant to imprison has been issued against him at the instance of for not making payment of the sum of £ contained in a [Or] That he is liable to imprisonment under a small debt decreet, obtained against him at the instance of for the sum of £ £ [Or] That he is in prison in respect of a civil debt amounting to at the instance of [Or] That he has been imprisoned, and afterwards liberated in respect of a civil debt, amounting to £ at the instance of [specifying the debt, and the particular circumstances of its constitution, by bill, decreet or otherwise]. That the petitioner is unable to pay his debts, and is ready to surrender his whole means and estate for behoof of his creditors. That his inability to pay his debts has not been occasioned by fraud, but has arisen solely from misfortunes and losses, to be particularly specified in the state of his affairs, subscribed by himself, and to be produced in the hands of the clerk of court. That the following is a list of the petitioner's real or pretended creditors, viz.-[stating their names on separate lines, with a progressive number for the sake of reference]. That there is herewith produced the schedule of an expired charge for payment of the said debt. [Or] A copy, certified by the clerk of the Small Debt Court, of the warrant in which he is liable to imprisonment. [Or] A certificate from the keeper of the prison of the imprisonment of the petitioner, and the date thereof, and of the liberation [if such there were]. That the petitioner is farther desirous to obtain a warrant of [liberation and] interim protection against the execution of diligence, and is ready to find sufficient caution acted in the Sheriff Court books of the county of to the amount of for which will become his cautioner. May it therefore please your Lordship to grant warrant for the requisite intimation or citation, and, on the expiry of the inducia, and on the petitioner finding such caution, to grant authority for his liberation and interim protection against the execution of diligence; thereafter, on resuming consideration of this petition, and advising the whole cause, to find that the petitioner is entitled to the benefit of the process of cessio bonorum, and to grant decreet accordingly, and to appoint such person as your Lordship shall think proper, trustee, who shall take the management and disposal of his estate for the general behoof of his creditors; all in terms of the Statute, and Act of Sederunt made thereanent. According to justice, &c. |