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OVER LANDED PROPERTY.

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wise the previous proceedings are null. This gives further publicity to the proceedings.

The routine of a process of adjudication is desultory, and difficult of concise elucidation. Innumerable points have generally to be contested, if the debtor litigate the individual suits. He has conceded to him the right of choosing whether the case shall be tried on the principle of a special or a general adjudication. By the first of these, the debtor agrees to produce the titles of the landed property sought to be adjudged, and give to the creditor so much thereof as corresponds to the debt, interest, and the expense of entry and infeftment, with a fifth more, on account of the inconvenience to which the creditor is put by being obliged to take land instead of money. The value of the land to be ascertained by a proof of the rental, or profit. When adjudged in this manner, the debtor can redeem his rights at any time within five years, by simply paying the debt and other expenses. If he do not redeem the property at this period, he and his successors lose all ulterior recourse. When the debtor does not accord with the terms of the special adjudication, by reason probably of his incapacity, or the number of competing creditors, a process of general adjudication is then pursued, whereby the pursuer, or pursuers, denude the debtor of all his rights on the property to whatsoever amount, and the period of redemption is protracted to ten years; and when this period has expired, the adjudgers have a right to pursue an action, called a declarator of the expiry of the legal, in order to secure their rights. If they do not do so, the right of redemption remains open to the debtor for forty years.

If it should happen that the rents of the debtor's landed estate are insufficient to defray the interest of his debts, it can be taken from him at once by his creditors, and disposed of for their joint behoof, under the authority and superintendence of the Court of Session. The process by which this is effected, is named an action of ranking and sale.

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CONCLUDING OPINIONS ON

This is an exceedingly rough sketch of the manner in which debts can be made effectual over landed property. Nevertheless, it may present an idea of the cautiousness of the Scotch law in molesting the rights of possessors. At an early period, the procedure, as in England, was conducted principally by sheriffs, and consequently by ignorant bailiffs. The Court of Session is now fortunately the rigorous guardian of heritable property, and no writ can be directed against it by inferior tribunals. This has been attended with the most beneficial results. It is scarcely possible now for a single creditor to injure his competitors actual or contingent. The slowness of the process permits all to come forward; and when the sales are made, the utmost publicity is given by ordinary advertisements. By these, and all the other characteristics of the process, justice is administered with impartiality to the creditors, the debtor, and the public at large.

Adjudications, whether special or general, are now unfrequent; but sixty years since, and in earlier times, they were very common. It is not from thence to be inferred, that land-owners are now more able to pay their debts than formerly. The more genuine cause of the alteration is the increase of entailed properties, and the ease with which money can be borrowed over heritages. The debtors likewise institute extra-judicial trusteeships of their estates for the behoof of their creditors, a line of procedure little followed by ancient proprietors.

Such are the processes for recovery of debt in Scotland, the general merits of which will be easily comprehended. They are less precipitate than those used in England, but in most instances, they are more sure, and calculated to be in unison with the habits and feelings of the people. English merchants sometimes complain of the tardiness of the forms, and of the impossibility of securing payments without writs. Yet it is worthy of comment, that no such objection was ever brought forward by native tradesmen, and the allegation can only be reconciled with truth on the

THE ENGLISH AND SCOTCH PROCESS. 173

principle of too indiscriminate credit having been given. Taking the aggregate of processes in England and Scotland, it will be found that recoveries are more frequent in the latter country. The expenses of diligence are also much lower in Scotland, on account of the precise methodical management of the process, which cannot be obscured and enhanced in price by fictions, the doublings of pettifogging lawyers, or the caprices of bailiffs.* To those unfortunate persons who are actually incapacitated from any payment of their debts, through the force of particular circumstances, the Scotch law has moreover provided remedies equally moderate and resolute, now to be the subject of illustration.

* Since writing the above, we have heard that a bill is in progress to limit the application of mesne process to L. 100 and upwards. Not to swell out our expositions, or confuse the reader, we have touched very slightly on the abusive forms of process in England, and have altogether abstained from noticing the prac tice of "collusive arrests," which, with other peculiarities of the system, are at once a curse upon, and a reproach to, the nation. So deplorable is the present condition of the law forms in England, and so obnoxious are they to reform, that they cannot stand a moment in comparison with the legal usages in Scotland, liable as these may be to a revision. Some years since it was elicited in evidence before the House of Commons, that a debtor in England, by an outlay of L. 30: 7: 6, might harass his pursuing creditor, and actually put him to the expense of L. 341. On hearing such a deposition, the committee turned to an eminent Scottish practitioner in attendance, and enquired if any thing of that sort could be done by the law of Scotland.-"No," said he, "I never heard of such a thing: I cannot comprehend it: It is quite unintelligible to me." After this, who will challenge the delay and expense of the letters of horning ?-Minutes of evidence on insolvent debtors.

PROMINENT AND PECULIAR LAWS AND USAGES
CONTINUED.

INSOLVENCY-CESSIO-TRUST-DEED-SEQUESTRATIONPRIVILEGE OF SANCTUARY.

He fled to Beverley, where he, and divers of his companions, registered themselves sanctuary men.-BACON'S HENRY VII.

AN outline having been presented of the different modes of recourse in the recovery of debts in Scotland, it is necessary to close the subject with a short exposition of certain usages in cases of insolvency.

It may be said that there are three ways of undergoing the ordeal of a process of bankruptcy in this country, though it be to only one of these the term is strictly applied. The first, and we believe the most ancient, in general use, consists in the expeding of a cessio. The old Scottish law, in the regulation of the process, resembled that of Normandy and other countries only partially emerged from the practice of barbaric customs. The principle of its action consisted in ordaining the person found guilty of pecuniary impotency, to be stripped of all his effects, which was to be divided among his creditors, and in case of an insufficiency of funds, to be punished by the infliction of a very degrading mark of infamy. The debtor was put in a public pillory at the market cross, dressed in specified party-coloured garments, resembling those composing the habit of the knave in a pack of cards.

INSOLVENCY IN SCOTLAND.

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Here he was stationed a certain number of days, and for a stated period, he was not allowed to appear at any other time in public, but in the same fantastic guise. The name of a dyvour was fastened upon him, from the divers hues of his apparel; he lost caste in general estimation, and, as we suppose, was too often left a mere wreck on society.

The law dictating such harsh measures, remains still entire. It continues to act on its original principles; but, in all cases, the court dispenses with the wearing of the habit, on an application being made for that purpose, and the pillorying has been long disused. Since thus modified in practice, the subjection to bankruptcy by the process now to be mentioned, is the very reverse of being oppressive, and in comparison with the procedure in clearing out the jails at occasional intervals, so long practised in England in relation to insolvent debtors, it is certainly superior. So beneficial was it considered, that it was taken as a model in the institution of the insolvent debtors' act, recently brought into operation in that country. The process of Cessio, or cessio bonorum-the rendition of goods, may be described in a few words.

The debtor who wishes to take the benefit of a Cessio, must, as a necessary preliminary, have been confined in jail for debt thirty days, at the termination of which period he is entitled to commence his action. He may have been liberated on the plea of ill health by the magistrates during the whole or a portion of this term of nominal incarceration, but this circumstance makes no difference. He opens the suit by assuming the position of a pursuer; placing his creditors in the light of defenders. He causes a summons to be issued in the usual mode of raising an action before the Court of Session, copies of which are served upon every real or alleged creditor. This summons, the style of which is a great curiosity, recites the day of his incarceration-the amount of the debt-the name of the imprisoning creditors, and, complaining to the court, that being in danger of being detained in

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