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Debtors (Scotland) Act 1838

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Debtors (Scotland) Act 1838

1838 CHAPTER 114 1 and 2 Vict

An Act to amend the Law of Scotland in Matters relating to Personal Diligence, Arrestments, and Poindings.

[16th August 1838]

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Modifications etc. (not altering text)

C1Short title given by Short Titles Act 1896 (c. 14)

C2Act repealed so far as inconsistent with Rules of Court by S.I. 1948/1691 (1948 I, p. 3778) and 1965/321

C3 “Such extract” means an extract of the Court of Session, Teind Court or Court of Justiciary

C4Preamble omitted under authority of Statute Law Revision (No. 2) Act 1890 (c. 51)

1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F1E+W+S+N.I.

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Amendments (Textual)

2—15.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F2E+W+S+N.I.

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Amendments (Textual)

[16F3Warrant to arrest may be introduced into summonses before the Court of Session.E+W+S+N.I.

It shall be lawful to insert in summonses raised before the lords of council and sessions concluding for payment of money a warrant (or will) to arrest the moveables, debts, and money belonging or owing to the defender until caution be found, acted in the books of council and session, that the same shall be made forthcoming as accords of law; and it shall be lawful to writers to the signet to subscribe and to the keeper thereof and his deputies to affix the signet to such summonses without any other authority than this Act.]

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Amendments (Textual)

F3S. 16 repealed (S.) (5.9.1994) by S.I. 1994/1443, para. 3(2), Sch. 4

17 Arrestment may be executed before executing the summons, but the summons must be executed and called within a limited period.E+W+S+N.I.

By virtue of such warrant of arrestment, and also by virtue of letters of arrestment raised upon any libelled summons according to the present practice, it shall be competent before executing the warrant of citation to arrest the moveables, debts, and money belonging or owing to the defender until caution be found as aforesaid; and such arrestment shall be effectual, provided the warrant of citation shall be executed against the defender within twenty days after the date of the execution of the arrestment, and the summons called in court within twenty days after the diet of compearance, or where the expiry of the said period of twenty days after the diet of compearance falls within the vacation, or previous to the first calling day in the session next ensuing, provided the summons be called on the first calling day next hereafter; and if the warrant of citation shall not be executed and the summons called in manner above directed, the arrestment shall be null, without prejudice to the validity of any subsequent arrestment duly executed in virtue of the said warrant.

[18F4Arrestments against persons furth of the kingdom to be executed at the record office.E+W+S+N.I.

It shall not be competent to execute any arrestment as in the hands of a person furth of Scotland by service at the market cross of Edinburgh, and pier and shore of Leith; but such arrestment shall be executed by delivery of a schedule of arrestment at the record office of citations in the Court of Session, which delivery shall be made and the schedule registered and published in the same manner as charges are directed to be registered and published by the Court of Session Act 1825.]

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F4S. 18 repealed (S.) (5.9.1994) by S.I. 1994/1443, para. 3(2), Sch. 4

19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F5E+W+S+N.I.

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Amendments (Textual)

[20F6Lord ordinary in the outer house may recall or restrict arrestments, subject to review.E+W+S+N.I.

It shall be competent to the lord ordinary in the Court of Session before whom any summons containing warrant of arrestment shall be enrolled as judge therein, or before whom any action on the dependence whereof letters of arrestment have been executed has been or shall be enrolled as judge therein, and to the lord ordinary on the bills in time of vacation on the application of the debtor or defender by petition duly intimated to the creditor or pursuer, to which answers may be ordered, to recall or to restrict such arrestment, on caution or without caution, and dispose of the question of expences, as shall appear just; provided that his judgment shall be subject to the review of the inner house by a reclaiming note duly lodged within ten days from the date thereof.]

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Amendments (Textual)

F6S. 20 repealed (S.) (5.9.1994) by S.I. 1994/1443, para. 3(2), Sch. 4

21 Sheriff may recall or restrict arrestments, subject to review.E+W+S+N.I.

It shall be competent for any [F7sheriff principal] from whose books a warrant of arrestment has been issued, on the petition of the debtor or defender duly intimated to the creditor or pursuer, to recall or to restrict such arrestment, on caution or without caution, as to the [F7sheriff principal] shall appear just; provided that the [F7sheriff principal] shall allow answers to be given in to the said petition, and shall proceed with the further disposal of the cause in the same manner as in summary causes, and his judgment shall be subject to review in the Court of Session.

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Amendments (Textual)

F7Words substituted by virtue of Sheriff Courts (Scotland) Act 1971 (c. 58), s. 4

22 Arrestments to prescribe in three years.E+W+S+N.I.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F8 all arrestments shall hereafter prescribe in three years instead of five; and arrestments which shall be used upon a future or contingent debt shall prescribe in three years from the time when the debt shall become due and the contingency be purified;. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F8

[F9(2)In the case of an arrestment which—

(a)secures a debt which is subject to a time to pay direction or a time to pay order; or

(b)is subject to an interim order under section 6(3) of the Debtors (Scotland) Act 1987 (order pending disposal of application for time to pay order),

there shall be disregarded, in computing the period at the end of which the arrestment prescribes, the period during which the time to pay direction, time to pay order or interim order is in effect.

(3)Nothing in this section shall apply to an earnings arrestment, a current maintenance arrestment or a conjoined arrestment order.]

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Amendments (Textual)

23—31.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F10E+W+S+N.I.

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Amendments (Textual)

32 Citations, &c. One Witness.E+W+S+N.I.

Extracts, citations, deliverances, schedules, and executions may be either printed or in writing, or partly both, and . . . F11, more than one witness shall not be required for service or execution thereof.

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Modifications etc. (not altering text)

C6S. 32 excluded in part (1.4.1997) by S.I. 1997/291, rule 3.24, Sch. 3

33, 34.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F12E+W+S+N.I.

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Amendments (Textual)

35. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F13E+W+S+N.I.

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Amendments (Textual)

36. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F14E+W+S+N.I.

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Amendments (Textual)

SCHEDULES

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F15E+W+S+N.I.

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