1 22 Scotch Law of Cc 



■which he receives a little remuneration ; 

 and he keeps a shop. 



Can you tell, generally speaking, from 

 ^vhat motive tliosc persons were kept iu 

 confinement? — Some from revenge, no 

 doubt; it is impossible to tell any other 

 motive. I have heard prisoners speak- 

 ing of the resentment of their plaintiff; I 

 have heard them say, They would pay 

 them the sixpences as long as they could 

 get money to doit; and tliose sort of 

 threats. 



Have you known any persons, ■v^ho 

 were reputed honest, being so confined I 

 •—A great many. 



Some of the cases yon think were 

 really honest and unfortunate debtors? — • 

 No doubt of it. 



You think then that the creditors 

 pushed their resentment too far in those 

 eases, where they kept such persons in 

 prison? — Yes. 



Arc there any persons in confinement 

 that are sick? — 1 have known them ill 

 for three or four months; but I do not 

 know of a sickness of longer duration, 

 %vithout its terminating tiicir existence. 

 Tliey all have relief. I have seen per- 

 sons brought into custody in an ill state 

 «f health, which shocked me. 



Were those persons, who came in in this 

 unhappy state of illness, kept confined 

 by their creditors any length of timc?-~ 

 I do not know of any one of them being 

 discharged in consequence of that ill- 

 ness, though \vc ha\e applied in some 

 instances for that purpose. 



"What answer have you received? — 

 I do not think it has been complied 

 with. 



The Lord Advocate of Scotfand, « mem- 

 ber of the committee, examined. 

 We understand that the principle of 

 the Civil Law, Cessio bonorum, is the 

 law of Scotland? — Yes; by the law of 

 Scotland, after a person has becji in- 

 carcerated and imprisoned for a month, 

 he may raise a suitor process, called a 

 process of Cessio bonorum, in the court 

 «f Session, the supreme civil court of 

 .Scotland ; and Ise mtist call all his credi- 

 tors as defenders in thet process. He is 

 entitled, upon shewing to the satisfac- 

 tion of the conit that iiis losses have 

 arisen from innocent misfortune, to ob- 

 tain what is termed the benefit of the 

 Cessio ; he granting all his subjects and 

 <ifcets, heritable and moveable, to his 

 «reditors; iii consequence of which, the 

 .court may, if tliey shall see cause fur 

 doing- so, direct him to be liberated from 

 prison. 



Uves Uiat libcratioa »xoiierate, or 



5sio bonorum. [Sept. 1 f 



not, his future estate and effects? — If 

 he accpiires any property of any descrip- 

 tion after being so liberated, any of his 

 creditors may atlach that property for 

 payment of their debts. 



When the proi^)erty is so attached, for 

 the payment of the debts of a creditor, is 

 its attachment for the benefit solely of 

 that creditor who sues that process, or 

 rateably among all the creditors? — Th» 

 property of the debtor is just in tjic sam« 

 situation as the proi)erty of any other 

 debtor, with this exception, that th« 

 court will allow him a sufficient amiual 

 sum, for his subsistence or maintenance. 

 When your lordship said, that he must 

 shew that he came into custody from in- 

 nocent losses, does your lordship meau 

 to say, that the onus probandi of his inno- 

 cence must rest with the debtor? — I 

 said, that he must shew that his insol- 

 vency arose from innocent' misfortune ; 

 and the common practice is, for tli» 

 debtor to give in what is called a conde- 

 scendence of losses, to which written 

 paper the creditors commonly give in 

 answers in writing, and the court then 

 proceed either to allow a proof to both 

 parties, or to take such other steps as ap- 

 pear to them to be proper for ascertam- 

 ing how the facts really stand. 



in Scotland, the person of a debtor 

 cannot be arrested as in England, ex- 

 cept he is in meditationefug<e, that i.<», 

 unless the creditorswears that the debtor 

 intends to leave the kingdom, so as fo 

 be out of the jurisdiction of the courts in 

 Scotland, and makes out a case before a 

 magistjate to that effect ; in that event, 

 the debtor is obliged to find caution, as 

 we call it, or aurcty jndicio cesti, that is, 

 to appear in court ; but he is not bound 

 to find security tor payment of the al- 

 ledged debt. In other cases, there must 

 either be a sentence, or as it is termed a 

 decree, of a court ; or there must be re- 

 gistration, which is Jield to be equivalent 

 to a decree, as in the case of a bill or 

 bond, before a creditor can arrest th« 

 person of his debtor: the creditor, how- 

 ever, in Scotland is entitled, not only to 

 due diligence against the subjects or ef- 

 fects of his debtor both heritable and 

 moveable, but he is likewise, after h« 

 has obtained sentence, entitled to incar- 

 cerate his debtor. 



Kirkman Finler/, esq. a 3Icmber of the 

 Committee, examined. 

 Wliat do you conceive to be the ope- 

 ration of the law of Cessio bonorum in 

 Scotland upon mercantile credit? — I am 

 not of opinion that the law of Cessio 

 bonorum 'n\ Scotiaud is at all injurious \a 

 2 iiieroautil«| 



