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PART II.

ORDINARY COURT-SPECIAL ACTS.

CHAPTER I.-ACT OF GRACE, AND AMENDING ACTS.

1696, c. 32.-An ACT Anent the Aliment of Poor Prisoners.

Our Sovereign Lord considering that generally the burghs of this kingdom, havers of prisoners, are troubled and overcharged with prisoners thrust into their prisons, who have nothing to maintain themselves, but must of necessity either starve or be a burden upon the burgh; doth, therefore, and for remeid thereof, with advice and consent of the Estates of Parliament, statute and ordain that where any person is made or shall be made prisoner for a civil debt or cause, and shall be found or become so poor as that he cannot aliment himself, then, and in that case, it shall be leisume to the magistrate of the burgh where the prison is to which the said prisoner is committed, upon the complaint of the said prisoner, and his making faith in their presence that he hath not wherewith to aliment himself, to intimate the same to the creditors, one or more, at whose instance the said prisoner was committed or is detained, and to require him or them either to provide and give security for an aliment to him, not under three shillings per diem, or else to consent to his liberation; which if the said creditors refuse or delay to do within the space of ten days thereafter, then it shall be leisume to the said magistrates to set the said poor indigent prisoner at liberty, without any hazard of being liable for the debt and cause of imprisonment, or to any other censure whatsomever : Provided always that if any other creditor, at whose instance he is made or detained prisoner, give surety to aliment the said indigent debtor, he shall still be kept prisoner as before; as also, that prisoners for criminal causes be in the same state as formerly.

6 Geo. IV. c. 62.—An ACT to amend an Act of the Scottish Parliament, relative to the Aliment of Poor Prisoners. -22d June 1825.

Scotch Act, W. III.]—Whereas by an Act of the Parliament of Scotland, passed in the first Parliament of King William the Third, intituled Act anent the aliment of poor prisoners, it was enacted, that where any person is made or shall be made prisoner for a civil debt or cause, and shall be found or become so poor as that he cannot aliment himself, then and in that case it shall be leisom to the magistrates of the burgh where the prison is to which the said prisoner is committed, upon the complaint of the said prisoner, and his making faith in their presence that he hath not wherewith to aliment himself, to intimate the same to the creditors, one or more, at whose instance the said person was committed or is detained, and to require him and them either to provide and give security for an aliment to him, not under three shillings Scots or threepence sterling per diem, or else to consent to his liberation: And whereas much distress is often suffered by such poor prisoners, from the want of support between the time that they are committed to prison and the time when an aliment is awarded and paid to them pursuant to the said recited Act; be it therefore enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this Parliament assembled, and by the authority of the same :—

[Sum to be deposited with each prisoner for aliment.]-That from and after the expiration of one month after the passing of this Act, it shall not be lawful for the gaoler or keeper of any prison to which a prisoner shall be brought to be confined for a civil debt, to receive such prisoner into his custody or confine him in such prison, unless the sum of ten shillings sterling shall be deposited in his hands by the creditor, incarcerater, or other persons for behoof of such creditor, as a means of and security for the aliment of such prisoner in the manner herein directed.

2. [Part of aliment to be paid out of sum deposited.]—And be it enacted, in the event of an aliment being awarded under the said recited Act, That the gaoler or other person in whose hands the said sum of ten shillings shall have been deposited, shall pay out of the same the aliment of the said prisoner, at the same rate at which aliment shall subsequently be allowed to such prisoner, from the time that he shall have been brought to the prison to the time when aliment shall have been so awarded to him pursuant to the said recited Act, and thereafter until the sum so deposited shall be exhausted.

3. [If aliment refused, sum deposited to be returned.]—And be it enacted, That where, on application by any such prisoner for the benefit of the said recited Act, it shall be found that he is not entitled to the same

then the whole of the said sum of ten shillings by this Act required to be deposited shall forthwith be returned to the creditor or person by whom the same shall have been deposited.

4. [Where application is not made, money deposited to be returned.]— And be it enacted, That were any such prisoner shall not apply for the benefit of the said recited Act before the expiry of thirty days from the day of his commitment, the said sum of ten shillings shall in like manner be returned to the creditor or person by whom the same shall have been deposited, at the expiry of the said thirty days.

5. [Money not exhausted to be returned.]—And be it enacted, That where an aliment shall be awarded to any such prisoner pursuant to the said recited Act, but the said sum of ten shillings shall not be thereby exhausted in the manner herein directed, at the time such prisoner shall be liberated, so much of the said sum of ten shillings as shall remain unexhausted shall be returned to the creditor or person by whom the same shall be deposited.

6. [On Liberation, sum remaining to be returned.]-And be it enacted, That where the creditor shall consent to the liberation of any such prisoner, without payment of any part of the debt for which he shall have been incarcerated, before such prisoner shall have had reasonable time to obtain the benefit of the said recited Act, the said sum of ten shillings shall be returned to the creditor or person by whom the same shall have been deposited, after deducting the amount of the aliment of such prisoner during his confinement, at the lowest rate at which aliment is usually modified by the magistrate of the burgh.

7. [Prisoners claiming the benefit of this Act to execute disposition in favour of their creditors.]—And be it enacted, That every prisoner who shall claim the benefit of the said recited Act shall be bound, when desired, to execute a disposition omnium bonorum in favour of the creditor at whose instance he is incarcerated for behoof of all his creditors, the expense of such disposition being always defrayed by the creditor demanding the same; and any such prisoner refusing to grant such disposition, after being duly required in writing so to do, shall not be entitled to aliment during the time he shall persist in such refusal.

ACT of SEDERUNT relative to the Form of Process in Civil Causes in the Courts of the Royal Burghs, and of Burghs of Barony.-Edinburgh, 12th November 1825.

PART II. CHAP. IV.-Applications for the benefit of the Act of Grace. In applications for the benefit of the Act of Grace, the creditor or his the Act 1696, c. 32, commonly called agent shall be allowed to be present

when the debtor makes oath; and, where it can conveniently be done, notice may be appointed to be given to the creditor or his agent of the day and hour when the debtor is to depone; and the creditor or his agent shall, if present when the debtor makes oath, be allowed to put all pertinent interrogatories to the debtor regarding his ability to aliment himself in prison. If, upon advising the petition with the oath, the petitioner shall be allowed the

benefit of the Act, no reclaiming petition from the creditor shall be competent. But he shall be allowed, within fourteen days, to lodge an articulate and specific condescendence of the facts he avers and undertakes to prove as relevant, for authorising the Court to recall the aliment already awarded, but which in the meantime must be paid to the debtor, in terms of the late Act of Parliament.

7 & 8 Vict. c. 34.-An ACT to amend and continue until the first day of September One thousand eight hundred and sixty-one, and to the end of the then next Session of Parliament, the law with respect to Prisons and Prison Discipline in Scotland.-19th July 1844.*

13. [Sheriffs may dispose of applications for aliment and liberation of civil prisoners.]-And be it declared and enacted, That Sheriff's within their respective sheriffdoms shall have the like powers and jurisdictions as have been possessed by magistrates of royal burghs, within their respective burghs, with respect to applications and proceedings for aliment and for liberation of civil prisoners.

CHAPTER II.—CESSIO BONORUM.

6 & 7 Will. IV., c. 56.-An ACT for regulating the Process of Cessio Bonorum in the Court of Session, and for extending the Jurisdiction of Sheriffs in Scotland to such Cases.-13th August 1836.

Whereas it is expedient to regulate the process of cessio bonorum in the Court of Session in Scotland, and to extend the jurisdiction of the Sheriff

* Made perpetual in regard to the section quoted by the Prisons Administration Act, 1860, [c. 105,] ? 76.

to such processes; be it therefore enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same :

[Sheriffs to have Jurisdiction as to cessio bonorum and sheriff-clerks and officers to act therein.]—That after the first day of October, One thousand eight hundred and sixty-six, every Sheriff within Scotland shall possess jurisdiction in processes of cessio bonorum, brought before him in manner hereinafter provided, as fully as in any other action presently by law competent before him, and the sheriff-clerk and messenger-at-arms, and all sheriff-officers in the several sheriffdoms in Scotland shall have power to act in their respective offices in relation to such processes.

2. [A debtor against whom a warrant to imprison issued or who is in prison, &c., may apply for decree of cessio.]-And be it enacted, That if a debtor has been or shall be charged to pay a civil debt, and a warrant to imprison him has been issued, or if he be liable to imprisonment under a decree of a Small Debt Court, or be in prison or imprisoned and afterwards liberated, in respect in these several cases of a civil debt, it shall be competent to such a debtor, on or after the said thirty-first day of October, to apply for interim protection, and for decree of cessio bonorum, in the manner hereinafter provided.

3. [Debtor may present to the Sheriff of the county in which he lives a petiton prayng for decree of cessio.]—And be it enacted, That after the said first day of October, such debtor may present to the Sheriff of the county in which he has his ordinary domicile a petition, setting forth that he has been charged, and that a warrant to imprison has been issued against him, or that he is liable to imprisonment under a small debt decree, or that he is in prison, or has been imprisoned, and afterwards liberated, in respect of a civil debt; that he is unable to pay his debts, and is ready to surrender his estates for behoof of his creditors, and praying for interim protection against the execution of diligence, and for decree of cessio bonorum; in which petition he shall insert a list of all his creditors, specifying their names and designations and places of residence, so far as known to him; and with such petition he shall produce (as the case may be) the schedule of an expired charge, or a copy certified by the clerk of the Small Debt Court, of the warrant on which he is liable to imprisonment, or, if he be in prison or imprisoned and thereafter liberated, a certificate from the keeper of the prison of such imprisonment, and the date thereof, and of the liberation.

4. [Proceedings upon such Petition.]—And be it enacted, That on such petition being presented the Sheriff shall issue a warrant appointing the debtor to publish a notice in the Edinburgh Gazette, intimating that such petition has been presented, and requiring all his creditors to appear in court on a certain day, being not less than thirty days from the date of

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