[1581/10/42]¹

Concerning deforcement, breaking of arrestments and alienations made in defraud of creditors

²Forasmuch as it is heavily complained to our sovereign lord by diverse of his subjects that when they have, upon their long travail and expenses, recovered their sentence, they are deforced in execution thereof, likewise when arrests are made to make the goods forthcoming after the recovery of the debt, the same are contemptuously broken; and further, the execution of the sentences and decreets are often times impeded by fraudulent alienations of the debtors' lands and goods made by them through coloured means of their friends and convicted persons, and the lawsuits and actions upon deforcements, breaking of arrestments and reduction of fraudulent alienations have been so tedious, sumptuous and lengthy that very few of them are brought to a good end, whereby our sovereign lord's authority is made contemptuous and his subjects are brought to great inconvenience. For remedy whereof, it is statute and ordained that the lords of council and session proceed summarily and diligently in all actions of deforcements and breaking of arrestments to be intended before them at the instance of whatsoever persons, and specially that the said actions, when they are called, shall with all convenient speed, without intermission, be put to a point after the calling thereof, and that the persons convicted of deforcements or breaking of arrestment shall be punished by the escheat of their goods moveable and punishment of their persons at our said sovereign lord's will, according to the laws observed of before, with this addition: that the party, recoverer of the sentence, shall be first paid of his debt and of his expenses, to be highly taxed by the said lords, and of a certain sum of money to be modified at the said lords' discretion to the party for the damage and interest sustained by them; concerning the which, the party interested shall have ready execution upon the first and readiest goods and gear of the person convicted, notwithstanding the right of the escheat pertaining to our said sovereign lord, who, for good of his subjects, wills and grants that the creditors be preferred to him in this case. And further, with advice of the said three estates, it is statute and ordained by his highness that all gifts of escheat which shall be given hereafter to whatsoever person or persons of gear, goods and others coming in his highness's hands for deforcement or breaking of arrestment, shall contain express exception and reservation to the creditor of the sums recovered for his principal debt, expenses and sum to be modified as said is; and if any gift of escheat proceeding upon this cause aforesaid be given without the said reservation and exception, the same shall be null and of no value. And likewise, for the greater expedition of reduction of alienations and dispositions of lands and goods made in defraud of the creditor, it is statute and ordained that the same be most summarily decided and privileged by summons upon 21 days' warning, without diet, table or continuation of other summons, and that the party, receiver of the said fraudulent alienations and dispositions, shall not be heard to defend therein, unless that they (before they be admitted to produce the said alienations and dispositions and to answer to the summons) consign in the hands of the clerk register and his deputes, for whom he shall be held to answer, such sums of money as shall be modified by the discretion of the said lords, to be delivered to the party pursuer in case the said alienations and dispositions shall be declared fraudulent.