Payment of Creditors (Scotland) Act 1793

II Act of Scotland of 1696 extended to Persons abroad, &c.

II. And be it enacted by the Authority aforesaid, That in all Actions and Questions arising upon the Construction and Effect of an Act of the Parliament ofScotland , made in the Year one thousand six hundred and ninety-six, Chapter five, intituled, An Act for declaring Notour Bankrupts , when the Debtor is out of Scotland , or not liable to be imprisoned by reason of Privilege, or personal Protection, a Charge of Horning executed against him, together with either an Arrestment of any of his Effects not loosed or discharged within fifteen Days, or a Poinding executed of any of his Moveables, or a Decree of Adjudication of any Part of his Estate, for Payment or Security of Debt, shall, when joined with Insolvency, be sufficient Proof of Notour Bankruptcy, and from and after the last Step of such Diligence, the said Debtor, if insolvent, shall be holden and deemed a Notour Bankrupt; and every Person, whether he be out of Scotland or not, whose Estate shall be sequestrated under the Authority of this present Act, shall also be holden and deemed a Notour Bankrupt in all Questions upon the said Act of one thousand six hundred and ninety-six, from and after the Date of the first Deliverance on the Petition to the Court of Session for awarding the Sequestration.

III Pari passu Preference of Arrestments in certain Cases.

III. And be it enacted by the Authority aforesaid, That when a Debtor is made Notour Bankrupt in Terms of the said Act made in the Year one thousand six hundred and ninety six, as now extended, all Arrestments which shall have been used for attaching any Effects of such Bankrupt within sixty Days prior to the Bankruptcy, or within four Calendar Months thereafter, shall be ranked,pari passu , in the same Manner as if such Arrestments had been of the same Date; and that in Time coming, Letters or Precepts of Arrestment bearing to be upon a depending Action may be granted summarily, upon Production of the libelled Summons, and it shall be no Objection to the pari passu Preference hereby established, that the Summons upon which any Arrestment proceeds was not executed, or that the Debt upon which it is founded was not liquidated at the Date of the Arrestment; provided always, that there and all other necessary Steps are afterwards taken without any undue Delay; and in case the first or any subsequent Arrester shall in the meantime have obtained a Decree of Forthcoming or Preference, and thereupon have recovered Payment, he shall nevertheless be accountable for the Sum recovered to those who, by virtue of this Act, may be eventually found to have a pari passu Preference thereon, and shall be liable to an Action at their Instance, for Payment to them proportionally, after allowing out of the Fund the Expence of making it effectual; and further providing, that if there be any Arrestments used for attaching the same Effects after the Period of four Months subsequent to the Bankruptcy, such Arrestments shall not complete with those used prior to the Period aforesaid, but may rank with one another, according to the former Law and Practice.

IV Arrestments at Marker Cross, &c, no sufficient Interpellation.

IV. And be it enacted by the Authority aforesaid, That an Arrestment executed at the Market Cross ofEdinburgh , and Pier and Shore of Leith , to attach the Effects of the Debtor, as in the Hands of a Person out of Scotland , shall not be held to have interpelled such Person from paying to the original Creditor, unless Proof be made that he or those having Authority to act for him were previously in the Knowledge of such Arrestment having been so used.

V Poinded Goods to be sold by Roup.

V. And be it enacted by the Authority aforesaid, That in future the Messenger or other Officer employed in executing a Poinding for Debt, shall leave in the Hands of the Debtor a Schedule of the poinded Goods, and Note of the appraised Values, (one Appraisement being in every Case sufficient,) and shall forthwith report his Execution of Poinding to the Sheriff, or other Judge ordinary, who shall give Directions for selling the Goods poinded by publick Roup, after such Publication, and at such Time and Place as Circumstance may require, any Person who intromits with or carries off the Goods in the meantime, in order to disappoint the Poinding, being liable in Double the appraised Value thereof; and the nett Sum arising from the Sale, after Deduction of all Charges, or the Goods, in case no offerers appear, shall be delivered over to the poinding Creditor, a Note or Minute of the Transaction being kept by the Clerk, to be made patent to all concerned, for a Fee of one Shilling.

VI Pari passu Preference of Poindings in certain Circumstances.

VI. And be it enacted by the Authority aforesaid, That when a Person has been rendered Notour Bankrupt as aforesaid, no Poinding of the Moveables belonging to such Bankrupt used within sixty Days before the Bankruptcy, or within four Calendar Months thereafter, shall give a Preference to such Poinder, but that every other Creditor of the Bankrupt, having liquidated Grounds of Debt, or Decrees for Payment, and summoning such Poinder before the said four Months are elapsed, shall be entitled to a proportional Share of the Price of the Goods so poinded, effeiring to his Debt, deducting always the Expence of such Poinding, together with tenper Centum more on the said Price or appraised Value, which the Poinder shall retain to Account of his Debt, in Preference to the other Creditors, the said Debt being thereby so far diminished in the Competition with them: And providing also, that all Poindings after the four Months shall have such Preference as they were entitled to by former Law and Practice, saving always the Landlord's Right of Hypothec for Rents, or any other Hypothec known in Law, which shall be nowise hurt or impaired by any Thing contained in this Act; and provided also, that in the case of a Sequestration under this Act, the Pari passu Preference of Arrestments and Poindings shall be regulated as herein-after directed.

VII Acts of Scotland of 1681 and 1695, in Part recited,

VII. 'And whereas an Act of the Parliament ofScotland , in the Year one thousand six hundred and eighty-one, Chapter seventeen, intituled, An Act concerning the Sale of Bankrupt's Lands , required certain Forms of Publication and Citation, which in Practice have been sound to be expensive and inconenient; and another Act of the Parliament of Scotland , in the Year one thousand six hundred and ninety-five, Chapter six, intituled, Act regulating the Sale and Payment of Bankrupt's Estate , made it lawful for Purchasers of such Estates to consign the Price after a certain Time, in the Hands of the Magistrates and Town Council of Edinburgh , which Method has been found inconvenient, and has seldom been practised; and by an Article in the Regulations of the Session established in the same Year, one thousand six hundred and ninety-five, Section twenty-six, it was provided, that the ranking of the Creditors should proceed and be concluded by Decree before the Sale of the Lands, which Regulation has generally been prejudicial to the Creditors;' ^{be it enacted}, That the said in Part recited Acts shall be, and the same are hereby in so far repealed; and the Court of Session shall have full Power to make Acts of Sederunt for abridging the Forms of Publication and Citation, and regulating the Proceedings in Processes of Sale, Ranking, and Division, whether at the ^Instanceof Creditors or of apparent Heirs; and in every Sale of a Sale under the Authority of the Court of Session, it shall be lawful to the Purchaser at any Term ofWhitsunday or Martinmas subsequent to the Term of Payment of the Price, to lodge the Price, with the Interest due upon it, in the Royal Bank or Bank of Scotland , at such Interest as can be procured for it, by doing which, and by giving Notice thereof to the Agent who carried on the Sale, he shall be discharged of the said Price; and further, the Court of Session, upon the Application of any of...