Sederunt anent Cessios of the 22nd of December 1882. Under the law existing
prior to these enactments, the process of _cessio bonorum_ operated chiefly
as a means for obtaining release from imprisonment for debt on a formal
surrender by a debtor of all his goods and estate. But under this process
the debtor was not entitled to a discharge, and his future-acquired
property was still subject to diligence at the instance of unsatisfied
creditors. By abolishing imprisonment for debt (except in regard to crown
debts and public rates and assessments), the legislature also practically
abolished this use of the process of cessio, and the process itself would
probably have become obsolete, but for certain changes effected by the act
of 1881, which have given it a different and more extended scope. Among
these changes may be noted (1) [v.03 p.0330] the extension to "any creditor
of a debtor who is notour bankrupt," without reference to the amount of his
debt, of the right hitherto limited to the debtor himself, to petition the
court for a decree of cessio, the prayer of the petition, whether presented
by the debtor or by a creditor, being "to appoint a trustee to take the
management and disposal of the debtor's estate for behoof of his
creditors"; (2) the discretionary power given to the court upon such
petition to award sequestration under the bankruptcy act, in any case where
the liabilities of the debtor exceed L200; and (3) the right of the debtor
to apply for his discharge under similar conditions to those obtaining in
the case of sequestration. An important modification of the law relating to
discharge which equally affects a debtor under the Bankruptcy and Cessio
Acts, is also effected by the provision of the act of 1881, which requires,
in addition to the concurrence of creditors, the fulfilment of one of the
following conditions, viz., "(a) That a dividend of five shillings in the
pound has been paid out of the estate of the debtor, or that security for
payment thereof has been found to the satisfaction of the creditors; or (b)
that the failure to pay five shillings in the pound has, in the opinion of
the sheriff, arisen from circumstances for which the debtor cannot justly
be held responsible." Orders of cessio are only made in the sheriff courts,
and when made, the court also appoints a trustee, who conducts the
proceedings without the control exercised by the creditors in a
sequestration. Under these conditions it will be seen that the original
purpose and constitution of the process of cessio has entirely disappeared,
and it has now become a modified form of official bankruptcy procedure,
with a less elaborate routine than in the case of sequestration, and one
perhaps more suitable to the smaller class of cases, to which in practice
it is limited.
The Bankruptcy Frauds and Disabilities (Scotland) Act 1884 applies to
sequestrations and decrees of cessio the criminal provisions of s. 31 of
the English Bankruptcy Act 1883, relating to the obtaining of credit for
L20 and upwards by an undischarged bankrupt, without disclosure of his
position. It also places the law relating to the disqualifications
attaching to such bankrupts on a similar footing to that of the English
act.
The Judicial Factors Act of 1889 contains a provision calculated to check
excessive costs of administration, by requiring that where the remuneration
of a trustee under a sequestration is to be fixed by the commissioners,
intimation of the rate of remuneration is to be given to the creditors and
to the accountant of court before being acted on, and the latter officer is
empowered, subject to appeal, to modify the same if he deems it expedient.
It may be pointed out that the Deeds of Arrangement Act 1887, which applies
to England and Ireland, does not apply to Scotland, and there is no
analogous provision requiring registration of private deeds of assignment
for the benefit of creditors as a condition of their validity in that
country.
Finally, it is to be noted that the office of accountant in bankruptcy,
which was established by the Bankruptcy Act of 1856, has under the Judicial
Factors Act 1889 been abolished, the duties being merged in those of the
office of accountant of the court of session.
_Irish Bankruptcy Legislation._
The Irish law of bankruptcy is regulated by the two leading Irish statutes
of 1857 and 1872, together with the Irish Debtors Act 1872, and corresponds
in its main features to some of the older English enactments, with
modifications adopted from the English act of 1869. It may be pointed out,
however, that the system of liquidation by arrangement and composition
without the approval or control of the court, which proved fatal to the
success of the latter, has not at any time been imported into the Irish
law. A special act was passed in 1888 for establishing local bankruptcy
courts in certain districts in Ireland, and an act was also passed in 1889,
applying the main provisions of the English Act of 1888, relating to
preferential payments in bankruptcy, to Ireland.
The Deeds of Arrangement Act 1887, which has been already discussed above
under the head of English bankruptcy legislation, also applies in its main
provisions to Ireland, and as supplemented by the Irish Deeds of
Arrangement Amendment Act 1890, places the law relating to this branch of
insolvency procedure upon a similar footing in both countries, so far as
regards the publicity of such deeds. The last-mentioned act also requires a
similar registration of all petitions for arrangement under the Bankruptcy