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SCOTCH COURTS OF LAW.
Ix former Numbers, we took occa obvious that one effect of it must sion to comment upon a multitude of be greatly to circumscribe commerabuses connected with the administra- cial credit, and, consequently, the tion of law and justice in the Infe- range of commercial enterprize. But rior Courts of Scotland. The subject this is not all: it is not only the we now propose to discuss can scarce. particular creditor who drives his ly be considered of lesser importance. debtor to the wall, (the wall of a The system of recovering debts in prison,) but the whole body of that Scotland, with reverence be it spok- person's creditors, who suffer from en, is a complete jumble of inconsis the expenses which have been heaptencies and senseless fictions; afford- ed upon him. In all bankruptcies, ing a boundless field for rapacity and it is well known, that one heavy item craft, and productive of much ünne in the state of losses sustained by the cessary delay and ruinous expense. bankrupt in the course of his trade, is In a commercial view, the evils of the expense of diligence which has such a system are incalculable. It been raised against him by the more has been too much the custom to urgent of his creditors. We have consider the expense of legal dili- been informed of the case of a bankgence-in other words, legal compul- rupt, who stated his losses arising sitors--only as it affects the interest from legal diligence alone, to amount of debtors; a body of individuals to upwards of £.2000 ; and when who perhaps receive much less than asked, at his examination, where was they merit of popular sympathy. the evidence of this extraordinary This, however, is a view as mistaken statement? replied, that the want of as it is exclusive. Too often it a horse and cart alone prevented his happens, that the debtor, in an agony bringing it along with him. of despair, upon finding that the In the law of Scotland, there are debt has been greatly augmented, a variety of processes, both judicial perhaps doubled or tripled, by what and ministerial, for the recovery of he conceives to be the rigorous pro- debts. There is no species of proceedings of his creditor, not only perty, scarcely, possessed by a debtor, makes no effort to relieve himself, which, as well as his person, is not but determines to take his vengeance attachable; and, in this respect, our upon the creditor, by going to jail law has a decided pre-eminence over and becoming a bankrupt.
This is most others.
It is of the very esa thing of every-day occurrence; and sence of justice, that a man who thus it will be seen, that legal dilic has contracted a debt for an onerous gence, from its expensiveness, be- consideration, should part with the comes the means, not only of disap- last shred of his property to dispointing creditors of their just claims charge it. In contracting the debt, in many instances, but of imposing he virtually pledges his whole means upon them very serious expense. and estate to his creditor ; and by Instances, we believe, are not rare, withdrawing any part of these beyond of creditors who have obtained de his reach, he grossly defrauds him. crees refraining from putting them It has often been questioned, whein force, from the very apprehension, ther it is either expedient or just to inspired, sometimes by prudence, add to a creditor's security by investsometinies by fear, that the certain ing him with a power over the perexpense is too great to be risked upon sonal liberty of his debtor. The the chance of recovery. The know- question is ioo theoretical for us to ledge of all this fortifies the debtor discuss at the present moment; but in his contumacy; and he laughs to were we called upon for an opinion, scorn the threats addressed to him we would have no hesitation to say, by a person, who, having the means that, in ninety-nine cases out of a of compelling payment, dare not em hundred, the creditor gains nothing ploy them. Such being the state of by having recourse to imprisonment, the law respecting diligence, it is but only renders the recovery of his
debt more desperate
At the same
writ proceeds directly from the Court time, the expediency of the law of commanding obedience to it. There imprisonment is to be judged of by is only a warrant consequent upon its restraining, as well as its coer the decree, authorizing letters of cive effects, the former of which can. horning and caption ; (certain writs not be accurately calculated ; but it issued in the King's name, under his is not to be doubted, that the terrors signet, which we shall explain afterof a jail keep many within the pale wards.) The former require the of honesty, who are not disposed to debtor to be charged, to satisfy the acknowledge the restraints of ho- creditor, within a certain number of nour or conscience. Mitigated as the days, and authorize the poinding law has been in its severity by a and arrestment of all his personal number of humane provisions, which property, in the event of his disobeprevent its being perverted to pur- dience ; for which disobedience, also, poses of personal vengeance, we are it is ordered, that he shall be denoundisposed to consider the influence of ced a rebel to the King, either at the it as salutary, and the maintenance market-cross of Edinburgh, as the of it as highly expedient. It is use commune forum of Scotsmen, or at ful, did it do no more than give a the market-cross of the head burgh sanction to principles of honesty in of the county where he resides. Upon the breasts of the well-intentioned, the letters of horning, with the reand a stimulus to their industry and turn, or execution, by the proper offivigilance.
cer, being retarded, letters of capThe sytem of legal diligence is tion are issued; which letters authonaturally divided into two branches; rize the apprehension and imprisonthat which affects the real or herita ment of the debtor; pot as a debtor, ble property of the debtor, and that but as a rebel against Majesty. In which operates against his person, the case of a decree pronounced and his goods and chattels. The by a Sheriff, he issues his precept, former we mean entirely to throw directing the debtor to be charged, out of view, because any abuses which and poinding and arrestment upon may attach to it cannot, in the na- expiry of the days of charge. But ture of things, seriously affect the he is not competent to imprison ; great bulk of the community. and hence the creditor, if resolved
The foundation of personal dili upon that measure, has, at the expiry gence is the decree of some compe of the days of charge in the Sheriff's tent Court. There are two species of precept, to apply to the Supreme decrees; first, those which are ac Court for warrants authorizing letters tually pronounced in foro; and, se of horning and caption, which are cond, those decrees which, upon the consecutively issued the same as upon registration of deeds containing per a Court of Session decree. In the sonal obligations in the books of com case, again, of a decree by a Burgh petent Courts, are presumed, by a Court, the Magistrates issue a prefiction of law, to be pronounced by cept, directing, upon the expiry of those Courts against the obligants, the days of charge, both the attachin virtue of a certain clause in the ment of the debtor's personal estate deeds authorizing such interposition and the imprisonment of his person; of authority. In the latter class may for, be it observed, that, by an old be included the supposititious decrees Scotch Act, passed for the benefit which follow upon the registration and encouragement of commerce, the of the notarial instruments of protest power of civil imprisonment is conferof bills and promissory notes; and red upon the Magistrates of Burghs. which decrees are authorized by a It is, therefore, the peculiar happiwise and salutary act passed in the ness of Scotch Burgesses, that they reign of his late Majesty. It is al may be imprisoned for debt, without most unnecessary to mark the dis the superfluous degradation of being tinction between the two species, denounced rebels. The decrees of since both are enforced by the same Justices of the Peace (when not promeans.
nounced under the Small Debt Act) In the case of a decree pronounced are a sort of capita mortua. They do by the Suprcme Court, no precept or not warrant imprisonment; and the
Supreme Court, from some subtlety a creditor must choose between his which we profess not to comprehend, debtor's person and his effects, his disdain to recognise them, and re execution being restricted to the one fuse to reinforce them with horning or the other. A Scotch creditor may and caption. The creditor holding proceed against both; and, with the one of these decrees, therefore, if he class of persons whom we are describwishes to try the efficacy of imprison- ing, it is the invariable practice, after ment, is obliged to raise a new action obtaining precepts from the Sheriff before the Judge-Ordinary of the Court, (to a Burgh Court, having the bounds, founding upon the decrees competent jurisdiction, they never of the Justices, and obtains what is apply,) to raise horning and caption, called a decree conform, upon which whether they seriously design to emhe may expede horning and caption. ploy the latter species of diligence or Before concluding this account, it is not. The profits upon this nefarious proper to state, that the days of charge, traffic are immense ; so much so, as in bornings and precepts, proceeding to have induced many who belong upon decrees in foro, are fifteen ; not to the profession to embark in it. but in those which proceed upon There is a distinct fee for agency, the conventional and 'statutary de- chargeable upon every step of the crees, which we have already ex- procedure ; and, besides, by a little plained, the days are only six. dexterity, the diligence may be pro
The course of proceeding which cured and put in force for half fees, must be followed, in order to attach wbile full fees are exacted from the the person of a debtor, must strike unfortunate debtor. In addition to every one as being absurdly circui- all this, there are the expences of retous, and ruinously expensive in the covering the expences by an ordinary extreme. The very mercies which action. the forms of the proceeding seem to The same system nearly is acted dispense to the debtor, are ingenious- upon, by the more mercenary part of ly cruel ; and which forms, we are the profession, with respect to debound to say, have given rise to an crees in foro. We have known reorganized system of legal robbery, peated instances of ultimate diligence which requires only to be exposed, to being raised upon debts not much excite the indignation and abhorrence exceeding £. 2., in some of which inof the public. In country towns stances, the means of imprisonment more particularly, there are always might have been more expeditiously to be found some understrappers of obtained by an action before a Burgh the law, who take up the trade of or a Small-Debt Court. We shall discounting bills with the sole design suppose a case, by no means rare, of of realizing fortunes by raising dili one of those debtors residing at the gence upon such bills as
distance of fifteen miles from the punetually paid. So determinate is place of residence of a messenger. their design, that they would reject The very expence of serving him a bill presented to them, the first ob- with a charge will amount to the ligant in which is a man of substance, same sum as his debt.
But, supposlikely to retire the bill immediately ing the debtor to be apprehended, upon its becoming due. All that and his effects poinded, the sum-total they require is the name of a man in of expence must amount to at least desperate circumstances, as the accep- five times more than the debt. ter, and some good name among the The delay occasioned by the ab, indorsers. This is the grand secret of surd forms of diligence is, of itself, the trade. When a bill in the hands an evil of no small magnitude. Most of these sharpers become due, what is decrees in foro are obtained from the the course of proceeding? In nine Sheriff, and, when pronounced in cases out of ten, they may be con absence, five weeks, at least, must scious that a charge of payment upon elapse before the debtor's person can an Inferior Court precept, or at most
be attached. If the case has been a poinding, will be sufficient to re- litigated, the delay will amount to six cover the debt. It is not in Scotland weeks. All the intermediate proas in England, however, (and we ceedings are so many solemn warnare well pleased that it is so,) where ings to a dishonest debtor, either to
abandon the country, or to place his interest of the latter to disappomt his effects beyond the reach of his credi- creditor. The ceremony of charging, tors. No honest debtor is at all be- therefore, we consider as of no adnefited by the delay which a charge vantage whatever,—as endangering affords to him. Where the decree the debt by the delay which it occaproceeds upon an action, his citation sions, and as oppressive in the way to that action is warning sufficient of expence. of the danger he incurs by a neglect It inay strike some of our readers to pay. Between the date of the ci- with astonishment to be informed, tation and of extracting the decree, that the present system of ultimate sufficient time intervenes for the diligence, or diligence directed against debtor making every fair exertion to the person, had its origin in priestprovide the means of discharging the craft! In remote ages, the laws of debt. The knowledge that a charge Scotland and of England resembled must ensue upon the decree only each other in all their great leading slackens his exertions, disposing him, features, and particularly in this indeed, to make no serious effort one, that a man's house was his caswhatever, until the charge is receive tle, which could not be forced, in ed. The principle, that celerity of execution of a civil process.
In execution is of great benefit in a Scotland, at that time, as in England commercial country, was acknow at the present day, a debtor was seledged by the Legislature itself, cure against arrest, so long as he rewhen it passed the Act authorizing mained at home, and kept his door summary diligence to proceed upon shut against bailiffs. But the priests, bills and promissory notes; and yet who then, they being the only notathat Act, in accomplishing a great ries, had the framing of all bonds and good, created this singular anomaly, similar writings, invented a scheme that only six days of charge are als which fairly deprived a debtor of lowed to the debtor in a bill, who every sanctuary for bis person. They receives no other formal intimation caused the obligant, in a bond, for of his creditor's intention to proceed example, solemnly to swear that he against him than the charge itself; would faithfully implement his obliwhile fifteen days of charge are algations; and, upon his failing to do lowed to the debtor, in a decree in so, the church excommunicated him furo, though fourteen days at the as a perjured person. Of course, it very least, previous to the charge, if was then the duty of the secular upon a precept, and thirty, if upon power to proceed against him; and letters of horning, a formal demand accordingly letters were obtained must be made upon hiin in the shape from the Sovereign, upon which the of a summons,-nay, though he may debtor was charged to place himself have been litigating the very debt in ward, as a King's prisoner, in some demanded, with his creditor, for a one of the royal castles, within a spenumber of years. We are aware it cified period. In the event of his may be said, that the ceremony of a disobedience, he was denounced a charge serves as a check to the preci- rebel to the King, and letters were pitancy of an unfeeling creditor. But issued, directing Sheriffs, and all other à creditor of this description, even official persons, to pursue and apprewith that check, may be too precipi. hend him, and put him in ward. tate. The delay of six or fourteen The process being, in its nature, cridays is scarcely a favour to a debtor minal, no house afforded the rebel who is involved in difficulties, at protection ; and an express warrant least it is a favour far too dearly pur was granted to break open all lockchased. It strikes us, however, as a fast places where he might possibly general truth, that the discretion of be lurking. It were needless to dethe creditor in using his diligence is scribe all the different modifications more to be relied upon, than the as which this singular process has unsiduity of the debtor in providing the dergone. Suffice it to say, that, in means of discharging the debt. It is progress of time, the mere fact of a the interest of the former to extend debtor having disobeyed a charge giall possible indulgence to his debtor, ven him in name of the King, came to as it is too often the disposition and be considered a sufficient ground for
proceeding against him as a rebel; vising a debtor to institute a process and hence excommunication was no of suspension, or reduction of dililonger considered a necessary preli- gence, on the ground that the mesminary, and fell into disuse. The senger's execution or return, bearing debtor was now charged to pay, and that he had denounced the debtor a failing to do so, was charged to sur- rebel, was utterly false ; and for render himself a prisoner to the this reason, that the Court must reKing, under the pain of rebellion. gard the whole ceremony to be but Latterly, the form of commanding the shadow of a shade, and that the the debtor to surrender his person attestation by the messenger of a was dispensed with ; and, upon his downright falsehood, is sufficient to being denounced a rebel, letters of uphold it. Why, then, should so moncaption were forth with issued, com strous and ridiculous a fiction be still manding his imprisonment. But, maintained? The principle on which besides imprisonment, this construc- it is built is not essentially incorporative rebellion was attended with ano. ted with our system of law; on the ther disastrous consequence to the contrary, it is an unseemly excrescence debtor. All his personal property be- upon its surface, occasioned by quack came forfeited to the Crown; and it practices, and which every friend to was very customary to make grants the system ought to wish to see comof such escheats to royal favourites; pletely eradicated. The old Scotch and, in order that the officers of the Statute, investing Magistrates of Crown might be duly informed of Burghs with the power of civil imthese windfalls, it was required, that prisonment, and the modern British every horning, upon which denun- Statute, extending the same power to ciation followed, should be engrossed the Small-Debt Courts, are so many in a record before caption was ex- acknowledgments by the Legislapede upon it. By an Act passed in ture itself of the principle, that the the reign of George the Second, the simple refusal of a debtor to implebarbarous penalty of the forfeiture ment his obligations, independently of a debtor's moveables was abolish- of any circumstance of guilt, real or ed; but the old fraudulent and de- constructive, is of itself a sufficient grading process of dealing with his reason for incarcerating his person. person has been preserved inviolate The former act, as we before obsertill the present day, for the good of ved, was passed for the encouragethose who fatten upon the distresses ment of commerce, which, at that of others. So much was the inte- time, was confined to burgh towns, rest of that powerful class attended and distinctly recognizes one princito, that the recording of hornings is ple we contend for—the advantage, still made necessary, though no as in a commercial point of view, of the signable reason exists for such a pro- celerity and cheapness of legal diliceeding, excepting that the law re
gence. Our ancestors, though not quires it. It will be perceived, that over-enlightened, were men of plain the entire system of personal dili common sense; and, in legislating, gence is rested upon a fiction, too es it was seldom that partial interests sentially childish to command the re- interposed between them and the spect of even a bigot. The veriest discharge of their duty. Their acts tyro of the profession regards it with are distinguished as much for their contempt ; and, in point of fact, the solid wisdom as their laconic breforms which once gave it the sem- vity, and afford a proof that hoLlance of a reality, have long since nesty is not one of the least requisites been dispensed with. No messenger in a legislator. It was not then as of the present day really denounces a now, when every improvement, howdebtor a rebel at a market-cross, upon ever palpable and necessary, is comletters of horning, although he makes batted by political bigotry, imaa regular return, certified by him- ginary apprehensions, and sophistiself and a couple of witnesses, that cal reasonings-all inspired by neithe imposing ceremony was duly ther more nor less than individual performed by him. So radically ab selfishness, to which those at the surd is the fiction considered to be, helm of affairs are too often comthat no lawyer would think of ad pelled to sacrifice some national ina