[1661/1/433]¹

Act for ordering the payment of debts betuixt creditor and debitor

Our soverane lord, considering how necessarie and essentiall it is to the verie being and flurishing of kingdomes and nations that ther should be a nationall confidence among the people themselffs, and with those of other nations with whom they have correspondence and traffique abroad, and that the most effectuall and propper way to beget, cement and mantaine the same is that promises, pactions, obleidgements and debts be faithfullie performed and satisfied, without which ther can be no trust and consequentlie no societie, intercourse and commerce at home, and all trade and traffique with other nations will certanlie decay and cease, to the irreparable losse, rwine and discredite of the nation; yet the troubles and difficulties of the tyme being so great that it is fit some breathing tyme and encouragement should be given to the debitors for the better enableing them to keep their credite, and to take some effectuall course for payment of their debts; thairfor, his majestie, with advice and consent of the estates of parliament, statuts and ordaines that for all summs and debts contracted befor the terme of Witsunday 1658 yeers, and exceiding one thousand pund[s] Scots of principall, personall execution shall be forborne by the space of sex yeers to begin at Witsunday lastbypast in this instant yeer 1661, provyding that the debitors mak payment of one yeer's annualrent at Candlemes next in the yeer 1662, and that the residue of the bygone annualrents of the saids summs resting unpayed at Witsunday next shall become and be made a principall summe, and the debitor shall give security for the same to those who have right to the bygone annualrents, when they tak the benefite of the forsaid forbearance in maner aftermentioned, or at any other tyme they shall be demanded, which security to be granted for the said bygone annualrents made up in a principall summe shall bear obleidgment to pay annualrent for the same in maner and from the termes afterspecified viz, for a thrid parte therof from Witsunday next 1662 yeers, and for ane other thrid parte from Mertimes therafter in the said yeer, and for the last thrid parte from Witsunday in the yeer 1663 dureing the not payment of the said principall sume so made up, for which personall execution is to be forborne, as for the other principall summs, by the space forsaid of sex yeers after Witsunday last, and without prejudice of the security to be granted in maner forsaid. It is also declared and ordained that the said bygone annualrents are made up and shall be holden and esteemed principall summs, and that annualrents shall be due and payable for the same from the termes and in maner forsaid, and that execution shall follow at the instance of these who have right to the same upon and be vertew of their bands, contracts and rights and of this present act and ordinance in the same maner as if a new security wer alreadie granted in maner and of the tenor abovewritten. And notwithstanding of the premisses, it is heirby declared that the lords of session shall have power to grant and passe suspensions for summs not exceiding one thousand punds, upon such reasons as they shall think just. And where those who have right to bygone annualrents are only liverenters, and have no right to the stock and principall sume, it is ordained that it shall be lawfull to them to use execution for the whole bygone annualrents due to them as they might have done befor the makeing of these presents; and that the saids lords of session shall have power to grant and passe suspensions against the saids liverentars incace they shall find just grounds and cause for granting of the same. It is likewise provydeit that the benefite of the said forbearance shall only be granted and competent to such debitors as shall pay the said yeer's annualrent within the time forsaid, and shall betuixt and the first day of November compeir befor any of the lords of session with the clerk and declare befor them, upon oath, that their debts exceids the value of four yeers' rent of their estate perteaning to and possest by them, which declaration extracted under the hand of the clerk of register or his deputies shall be a sufficient security against personall execution, and for the which extract the clerk of register and his deputies shall have for their fies the sume of threttie-three shillings [and] four pennies Scots and no more. And it is declared that all persons who shall not by themselffs, or their tutors and curators, appeare and declare within the tyme and in maner forsaid, shall be excluded from the benefite of the forsaid forbearance, and shall never be reponed or admitted therafter upon any pretext whatsoever. And the benefite of the forsaid forbearance being granted to the debitors, or any of their cautioners upon the compeirance and declaration forsaid, shall only be personall for them and their heirs and others representing them, and shall not be extendit to those who are bund with them and lyable to the saids debts, wnles they also compear and declare that their oune propper debts and cautionrie for persons who have taken the benefite of this act exceids the value of four yeers' rent of thair estate, and that within the tyme and in maner forsaid. And for the more ease of the debitors, it is ordained that, incace within the tyme of the forbearance forsaid the debtor shall offer to the creditor a parte of his debt not being beneath or within the thrid parte of the whole summs due by him to the creditor for the tyme, the creditor in that cace shall be holden to accept of the said partiall payment and, incace of his refuseall, offer being made of a parte of the said summs, not within the proportion forsaid in presence of a notter and witnesses, the debitor, upon consignation of the same in the hands of the clerk of the bills, shall be frie of the annualrent of that parte of the said sum that shall be consigned in all tymecomeing after the consignaion forsaid. And wheras the legall reversion of compriseings wes formerlie limited for seven yeers, his majestie, for the reasons and with consent forsaid, is graciouslie pleased to extend the same to ten yeers in all tymecomeing; and statuts and ordaines that all compriseings alreadie deduced, and wherof the legall reversion is not yet expired, or which shall be deduced any tyme heirafter, shall be redeemable within the space of ten yeers after the date of the same, and all compriseings deduced since January 1652 yeers and wherof the legalls are expyred, and all compriseings deduced befor the said moneth of January 1652 yeers, and which wer not expired befor the said moneth of January 1652 yeers, shall be redeemable within the space of three yeers after Witsunday now lastbypast, notwithstanding the leggall reversions of the same be now expyred; and incaice the lands and others comprised exceid in yeerly rent and value the annualrent of the sums contained in the saids compriseings, and of the expence disbursed in obtaining infeftments therupon, and the debitor shall desire the creditor to possesse the lands and others comprised, it shall be lawfull to the lords of session, lykas the saids lords are heirby impowered and authorized, upon a supplication to be made to them by the debitor and citation of the comprisers, to appoint the apprisers to possesse such of the saids lands and others dureing the legall reversion as the saids lords of session shall think just and reasonable, the saids debitors alwayes giveing possession to those who have right to the saids compriseings and ratifieing their possession alreadie apprehended by them (if any such possession they have) of such of the lands and others as the saids lords of the session shall appoint, not being beneath in yeerly rent and value of the annualrents abovementioned, or otherwayes giveing to the creditors (whither they have possession or not) sufficient security at the sight of the saids lords for payment of the saids annualrents dureing the tyme forsaid, the saids lords of the session haveing alwayes power to determine whither in the caces forsaids the debitor shall give surety to the creditor for his annualrents, or the debitor, not being able to give surety, the creditor shall be obleidged to take possession of the debitor's lands, and if the lords of session shall appoint, in the cace forsaid, the creditor to be possest for his annualrent, then and in that cace the debitor shall be holden to deliver the evidents of the saids lands to the creditor or transumpts therof, provydeing alwayes that the creditor's right be vertew of the saids compriseings be nowayes prejudged after expireing of the same, and that the wole lands and others both, such as shall be possest by debitor, and the remanent of the lands and others contained in the saids compriseings shall pertaine to the creditor irredeemably. And because oftentymes creditors inregaird they live at distance or upon other occasions are prejudged and preveened by the more tymeous diligence of other creditors, so that befor they can know the condition of the common debitor his estate is comprised, and the posterior comprisers have only right to the legall reversion, which may and doth often prove ineffectuall to them, not being able to satisfie and redeem the prior compriseings (thair means and money being in the hands of the common debitor), thairfor it is statute and ordained that all compriseings deduced since the first day of January one thousand, sex hundreth [and] fiftie-tuo yeers befor the first effectuall compriseing or after, but within yeer and day of the same, shall come in pari passu together as if one compriseing had been deduced and obtained for the whole respective summs contained in the forsaids compriseings. And it is declared that such compriseings as are preferable to all others, inrespect of the first reall right and infeftment following therupon or the first exact diligence for obtaineing the same, are and shall be holden the first effectuall compriseing, though ther be others in date befor and anterior to the same; and the forsaid benefite given and introduced heirby in favours of these whose compriseings are led within the tyme and in maner forsaid is only granted and competent in the cace of compriseings led since the first day of January 1652 yeers and to be led after the date of thir presents, and for personall debt only, without prejudice alwayes of ground annuells, annualrents due vpon infeftment and other reall debts and debita fundi and of compriseings before of lands and others affected therwith, which shall be effectuall and preferable, according to the lawes and practick of this kingdome now standing. And it is also provydit that the creditors haveing right to the first compriseing (except as is above excepted[)] shall be satisfied by the posterior comprisers claimeing the benefite forsaid of the whole expence disbursed by them in deduceing and expeding the said first compriseing and infeftments thervpon. And further, for obviateing the frequent and fraudfull practise of the appeirand heirs of debitors who are in use to acquire the right of expyred compriseings and, by vertew therof, to enjoy and possesse their predicessor's lands and estate to the prejudice and defrauding of the posterior compriseings and other creditors, it is statute that incace the appearand air of any debitor or any other confident person to his behove shall at any tyme heirafter acquire the right of ane expyred compriseing alreadie deduced, or which shall be led and deduced heirafter, the said right shall be redeemable from the appearand heir or the said confident person their heirs and successors within the space of ten yeers after the expyreing of the said right by the posterior comprisers, upon payment allenerlie of the sums truelie payed and given out for buying and acquireing the saids rights, at the least so much therof as shall be resting unsatisfied for the same by the intromission of the appearand heir or of the said confident person or their forsaids. And his majestie, with consent forsaid, doth declare that the benefite forsaid introduced heirby anent compriseings shall be extendit to adjudications for debt, so that the creditors, at whose instance the same are obtained, and those who have right to redeem the same, shall be in the same cace as to the benefite forsaid as if the said adjudications for debts wer compriseings. And incace a creditor against whom the benefite of the forsaid forbearance of sex yeers shall be taken, or who hath led or shall leid a compriseing against the debitor, shall think fit and be willing and desireous to take his debtor's lands or other estate, or any parte therof for security or payment and in satisfaction of his debt, then and in either of these caces the debitor shall be holden to give security out of his lands and other estate, or to sell the same to the creditor at the sight of the lords of session, with such warrandice and at such rates and pryces (if the creditor be content to buy) as they shall appoint, with certification that otherwise the debitor refuiseing or failing shall lose and forfalt all benefite introduced in favours of the debitors by this present act as if it had never been made. And inregaird some persons may have taken advantage of the late times and troubles, by takeing and acquireing propper wodsets of lands and others exceiding the annualrent of the sums lent upon the same, and provyding, nevertheles, by the right of the forsaids wedsets and expresse provisions therin, or by writ, a parte that they should not be lyable to any hazard of the fruits, tennents, war or troubles, his majestie, with consent forsaid, statuts and ordaines that all such wodsets granted since the yeer 1649 shall be restricted to the ordinary annualrent of the sums wherupon the same are redeemable, and the saids wodsetters shall be comptable for the superplus of the maills and dueties and other benefite of the same, exceiding the annualrent of the saids sums, and the same shall be imputed and ascrybed in satisfaction of the said principall summs pro tanto; and incaice any such barganes and rights shall be made and acquired heirafter, his majestie, with consent forsaid, declares the same unlawfull and usurarie, and the contraveeners shall be punished severlie as usurers, conforme to the lawes and acts of parliament against okerers and usurers. And as to propper wodsets granted since the tyme forsaid, wher the creditor undergoes the saids hazards, and the same are affected with the ordinar provisions and clauses irritant, incaice of not payment of the sums given out and due upon the saids wodsets, at the termes and in maner mentioned in the saids rights; albeit the saids wodsets and provisions be lawfull, yet his majestie, considering and haveing respect to the difficulties of the tymes, statuts and ordaines with consent forsaid that the saids clauses irritant shall not take away the heritor's right, they alwayes redeeming within the space of fyve yeers after Witsunday last. And incaice the debitors conceave that they have disadvantage by the saids propper wodsets, and shall desire to redeem the same, it shall be lawfull to them to redeem at any terme of Witsunday or Mertymes they please, notwithstanding of any provision to the contrair in the said wodset rights or any other right aparte suspending the redemption thairof. Lykeas, it is declared that the clauses of requisition contained in propper wodsets granted since the yeer 1649 shall be effectuall and nowayes suspendit nor prejudged heirby, but prejudice alwayes to the forbearance of personall execution in maner abovewritten. And wher the creditors and wodsetters have transacted with their debitors and have acquired irredeemable rights for and place of their former wodsets, it is ordained and declared that when and at what time soever the saids wodsets wer granted, whither befor or since the yeer 1650, the saids transactions and irredeemable rights acquired by the creditor befor the same are and shall be valeid and effectuall, and shall nowayes be prejudged be these presents. And further, his majestie, with consent forsaid, doth declare that incaice any debitors have, by volunter agreement betuixt them and their creditors or any of them, renunced the benefite of any acts of this nature concerning debitor and creditor, made or to be made, the said agreement shall be of force and effectuall, and shall not be prejudged heirby, without prejudice alwayes to the said debitor of the prorogation forsaid of the legall reversions of compriseings led and deduced against them and not as yet expyred, notwithstanding of the agreement and renunciation forsaid. And because befor the yeer 1650, when money past at eight or ten per centum, diverse propper wodsets wer then made and granted and are yet unredeemed, and since the begining of January, one thousand, sex hundreth and fiftie ther be diverse persons who, takeing advantage of the tymes, refuised to lend their money wnles they got propper wodsets of lands and teinds at extraordinary advantages to the heavie prejudice of the debitors, theifor, his majestie, with advice forsaid, statuts and ordaines that in tymecomeing dureing the not requisition of the soumes wherupon the saids wodsets are redeemable, and dureing the not redemption of the same respectivelie, if the debitors shall give sufficient security to the wodsetter for payment of his annualrent dureing the not redemption or not requisition, as said is, in that cace the creditor wodsetter shall be holden to renunce and quyt his possession of the saids lands and teinds in favours of the debitor and others haveing right from him, at least if the wodsetter shall be content to reteane the possession of the same, in that cace all the frie proffeits and rents which he shall have or uplift out of the saids lands shall be restricted to sex per centum yeerlie of frie money, and the wodsetter shall be countable to the debitor, or others haveing right from him, for the superplus, and that without prejudice of the wodsetter's reall right and infeftment, ay and whill the lands be redeemed and the principall summe wherupon the same is redeemable shall be satisfied. It is alwayes provydit that wher any creditor hath had losse by his possession of the wodset lands and others since the date of his wodset, so that he hath not receaved as much frie rent as communibus annis hath extended to the annualrent allowed be law for the tyme, all charges and burdens being deduced, in that cace it is provyded that the wodsetter shall be first satisfied of what he wants befor he quit his possession of the said wodset lands, or be holden to accept security for his annualrents; and it is declared that in the account of the wodsetters bygone losse, ther shall be allowed what he hath disbursed upon reparation and building of tennents' houses, milns and for the advantage of the ground, and generallie all other expence which the wodsetter wes put to, and what losse he sustained in reference to the said wodsetlands, rights and securities therof any maner of way, and what he hath lost by quarterings, cesse, waste land, depaupered tennents, or by tennents who wer not able to pay, unless the ground should be casten waste, and becaus the wodsetter's probation of his said losse may be difficile, he not conceaveing that ther should be necessity for any such count, or that ther should be any alteration made in the right and possession of his propper wodset, therfor, his majestie, with advice forsaid, doth allow the lords of session to take such reasonable probation as in equity they shall think fit, and if ther be any deficiency to tak the wodsetter's oath in supplement. And wher the wodsetter is in naturall possession of the wodset lands by duelling theron or labouring the same with his oune plough and goods, or otherwayes haveing the same plenished with his saids goods, in that cace he shall not be holden to remove from his said possession, but at the ordinary terme of removeing, and that he be lawfullie warned fourty dayes before and after sufficient security shall be made to him in maner abovespecified befor the said warneing. And his majestie, haveing granted so much favour, benefite and indulgence to debitors as the lyke cannot be shoune to have been granted at any tyme in this kingdome, doth declare, statute and ordaine that the lawes and practick of the kingdome concerning debts and payment therof and diligence and execution for the same, and concerning propper wodsets wher the creditor wodsetter hath the hazard of fruits, tennents, war and others, shall be observed inviolablie and be of full force, vigour and effect in all tymecomeing, excepting so far as the same is altered, innovat and repealled be this present act.