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Cessio Bonorum

system, creditors, person and court

CE'SSIO BONO'RUM, in the law of Scotland, is the name given to a process by which, as by the insolvency system in England, the estate of an insolvent person who does not come within the operation of mercantile bankruptcy is attached and distributed among his creditors. The term is derived from the deed of cession, or the assignment by which, as the coun terpart of the relief afforded to him from the immediate operations of his creditors, the insolvent conveys his whole property for their behooE Both the nomenclature and the early practice of the system are taken from the Roman law. (Dig. 42, tit. 3, "de cession bonorum.") Accord ing to the more ancien• law, the person released from prison on a cessio bonorum was bound to wear a motley garment called the dyvour's habit. In later times this stigma became the penalty of fraud, and it was subsequently disused. Before the passing of the late act, the jurisdiction in the awarding of Cessio was entirely confined to the Court of Session, and the insolvent was required to have been a month in prison before he could sue out the process. By 6 & 7 Will. IV. c. 56, the system was remodelled. The process may now be sued out either in the Court of Session or in the sheriff's local court. It may be taken advantage of by any person who is in prison for civil debt, or 1 against whom such a writ of imprison ment has issued. It proceeds on notice to

the creditors, and an examination and surrender of the insolvent. Proceedings instituted in the Sheriff Court are liable to review in the Court of Session. Cessio bonorum exhibits, like the insolvency system in England, this important differ ence from mercantile bankruptcy, that the person who obtains the privilege is not discharged from his debts, but only from proceedings against his person for payment of past debts, his estate conti nuing to be liable to the operations of his creditors. In Scotland, however, the common law means of attaching a debtor's property are simple and effec tual, and there does not appear to have been there the same inducement as ia England to make the process for the dis tribution of the debtor's effects an instru ment of their discovery. The Scottish system, moreover, cannot be used by the creditors as a means of compelling their debtor to distribute his estate. It is a privilege of the debtor, and being seldom resorted to except by persons in a state of destitution who are harassed by vindictive creditors, the improvement of the system has not been a matter of much interest either among lawyers or legislators.