Debtors (Scotland) Act 1880

JurisdictionUK Non-devolved
Citation1880 c. 34
Year1880


Debtors (Scotland) Act, 1880.

(43 & 44 Vict.) CHAPTER 34.

An Act to abolish Imprisonment for Debt, and to provide for the better Punishment of Fraudulent Debtors in Scotland; and for other purposes.

[7th September 1880]

B E it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

S-1 Short title.

1 Short title.

1. This Act may be cited for all purposes as theDebtors (Scotland) Act, 1880.

S-2 Extent of Act.

2 Extent of Act.

2. This Act shall extend to Scotland only.

S-3 Commencement of Act.

3 Commencement of Act.

3. This Act shall come into operation on the first day of January one thousand eight hundred and eighty-one, which day is herein-after referred to as the commencement of this Act.

Abolition of Imprisonment for Debt.

Abolition of Imprisonment for Debt.

S-4 Abolition of imprisonment for debt, with certain exceptions.

4 Abolition of imprisonment for debt, with certain exceptions.

4. With the exceptions herein-after mentioned, no person shall, after the commencement of this Act, be apprehended or imprisoned on account of any civil debt.

There shall be excepted from the operation of the above enactment,—

S-1

1. Taxes, fines, or penalties due to Her Majesty, and rates and assessments lawfully imposed or to be imposed:

S-2

2. Sums decerned for aliment:

Provided that no person shall be imprisoned in any case excepted from the operation of this section for a longer period than twelve months.

Nothing contained in this Act shall affect or prevent the apprehension or imprisonment of any person under a warrant granted against him as being in meditatione fug, or under any decree or obligation ad factum prstandum.

S-5 Discharge of persons in custody at the commencement of this Act.

5 Discharge of persons in custody at the commencement of this Act.

5. Where any person is, at the commencement of this Act, in custody under a warrant of imprisonment, or other process in any case in which he would not be liable to be apprehended or imprisoned after the commencement of this Act, such person shall, at the commencement of this Act, be discharged from such custody; but his apprehension, imprisonment, or discharge shall not affect the other rights or remedies of any creditor for enforcing the payment of any money due to him.

Notour Bankruptcy.

Notour Bankruptcy.

S-6 New mode of constituting notour bankruptcy.

6 New mode of constituting notour bankruptcy.

6. In any case in which, under the provisions of this Act, imprisonment is rendered incompetent, notour bankruptcy shall be constituted by insolvency concurring with a duly executed charge for payment followed by the expiry of the days of charge without payment, or, where a charge is not necessary or not competent, by insolvency concurring with an extracted decree for payment followed by the lapse of the days intervening prior to execution without payment having been made.

Nothing in this section contained shall affect the provisions of section seven of the Bankruptcy (Scotland) Act, 1856.

Cessio bonorum.

Cessio bonorum.

S-7 Debtor, who is notour bankrupt, may apply for cessio.

7 Debtor, who is notour bankrupt, may apply for cessio.

7. Any debtor who is notour bankrupt within the meaning of the Bankruptcy (Scotland) Act, 1856, or of this Act, may present a petition for decree of cessio bonorum, in the same manner and subject to the same provisions and conditions, as nearly as may be, in and subject to which a person now entitled to apply for decree of cessio bonorum may do so under the Actsof Parliament enumerated in the schedule hereto annexed, herein-after called the Cessio Acts;and the provisions of the Cessio Acts shall apply, as nearly as may be, to such petition and the procedure thereunder, subject to the provisions herein-after contained.

S-8 Cessio at instance of creditor.

8 Cessio at instance of creditor.

8. Any creditor of a debtor who is notour bankrupt within the meaning of the Bankruptcy (Scotland) Act, 1856, or of this Act, may present a petition to the sheriff of the county in which such debtor has his ordinary domicile, setting forth that he (the debtor) is unable to pay his debts, and praying that he may be decerned to execute a disposition omnium bonorum for behoof of his creditors, and that a trustee be appointed who shall take the management and disposal of his estate for such behoof, and such process shall be taken and deemed to be a process of cessio. In the petition there shall be inserted a list of all the creditors of the debtor, specifying their names, designations, and places of residence, so far as known to the petitioner, and with the petition shall be produced evidence that the debtor is notour bankrupt.

S-9 Procedure in cessio at instance of creditor.

9 Procedure in cessio at instance of creditor.

9. On such petition being presented the following provisions shall have effect:

S-1

1. The sheriff, if he is satisfied that there is prima facie evidence of notour bankruptcy, shall issue a warrant appointing the petitioner to publish a notice in the ‘Edinburgh Gazette,’ intimating that such petition has been presented, and requiring all the creditors to appear in court on a certain day, being not less than thirty days from the date of the ‘Gazette’ notice, the petitioner being bound, within five days after the date of such notice, to send letters to all the creditors specified in the petition, containing a copy of the said notice, and the sheriff shall further ordain the debtor to appear on the day so appointed for the compearance of the creditors in the presence of the sheriff for public examination; and the debtor shall, on or before the sixth lawful day prior to the day so appointed, lodge, to be patent to all concerned, a state of his affairs subscribed by himself, and all his books, papers, and documents relating to his affairs, in the hands of the sheriff clerk; and the petitioner shall, on or before the same date, lodge in the hands of the sheriff clerk a copy of the said ‘Gazette,’ and a certificate subscribed by his agent, or by a messenger-at-arms, or sheriff officer, and a witness, stating the date and the place where the letters to the creditors were put into the post office, and that they were severally addressed as specified in the petition.

S-2

2. On the day appointed for the compearance of the creditors the debtors shall appear in public court in presence of the sheriff for examination as to his affairs, and the sheriff shall have power to put him on oath or affirmation, as the case may be, and the debtor shall be bound to answer all pertinent questions put to him by the sheriff, or by any creditor with the approbation of the sheriff, and it shall be competent for the sheriff to adjourn the examination for such time as to him shall appear fit and reasonable; and the provisions of section ninety-three of the Bankruptcy (Scotland) Act, 1856, shall, as nearly as may be, apply to the examination of debtors, and the production of books, deeds, or other documents by them, under this Act.

S-3

3. The sheriff shall, on such examination being taken, allow a proof to the parties, if it shall appear necessary, and hear parties viv voce, and either grant decree decerning the debtor to execute a disposition omnium bonorum to a trustee for behoof of his creditors, or, refuse the same in hoc statu or make such other order as the justice of the case requires. The trustee shall be nominated by the sheriff on the suggestion of the creditors represented at the meeting for examination, and if they do not agree on a person, the sheriff shall make his own selection.

S-4

4. Any judgment or interlocutor, or decree, pronounced in such petition may be reviewed on appeal in the same form and subject to the like provisions, restrictions, and conditions as are by law provided in regard to appeals against any judgment or interlocutor, or decree, pronounced in any other process of cessio bonorum.

S-5

5. Until the debtor shall execute a disposition omnium bonorum for behoof of his creditors, any decree decerning him to do so shall operate as an assignation of his moveables in favour of any trustee mentioned in the decree for behoof of such creditors.

S-6

6. The expense of obtaining the decree and of the disposition omnium bonorum...

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