HONI SOIT 〈◊〉 MAL Y PENSE  royal blazon or coat of arms   

AN ACT For ordering the payment of DEBTS, BETWIXT CREDITOR AND DEBTOR.  
At Edinburgh the twelfth of July, 1661.  
C R  HONI SOIT QVI MAL Y PENSE 
EDINBURGH, Printed by Evan Tyler, Printer to the Kings most Excellent MAJESTY, Anno Dom. 1661.   

An ACT for ordering the payment of Debts, betwixt Creditor and Debtor.  
At Edinburgh the twelfth of July, 1661.  
Our Sovereign Lord, considering how necessary and essential it is to the very being and flourishing of Kingdoms and Nations, that there should be a National confidence among the People themselves, and with these of other Nations with whom they have correspondence and traffic abroad; and that the most effectual and proper way to beget, cement, and maintain the same, is, that Promises, Pactions, Obliegements and Debts be faithfully performed and satisfied, without which there can be no trust, and consequently no society, intercourse and commerce at home, and all trade and traffic with other Nations will certainly decay and cease, to the irreparable loss, ruin and discredit of the Nation: Yet, the troubles and difficulties of the time being so great, that it is fit some breathing time and encouragement should be given to the Debtors, for the better inableing them to keep their credit, and to take some effectual course for payment of their Debts. Therefore, His Majesty, with advice and consent of the Estates of Parliament, Statutes and Ordains, That for all Sums and Debts contracted before the term of Whitsonday, one thousand six hundred and fifty eight years, and exceeding one thousand pounds Scots of principal, personal execution shall be forborn by the space of six years, to begin at Whitsonday last bypast, in this instant year, one thousand six hundred and sixty one, Providing, that the Debtors make payment of one years Annualrent at Candlemesse next, in the year, one thousand six hundred and sixty two, and that the residue of the bygone Annualrents of the said Sums, resting unpaid at Whitsonday next, shall become and be made a principal Sum, and the Debtor shall give security for the same to these who have right to the bygone Annualrents, when they take the benefit of the foresaid forbearance, in manner aftermentioned; or at any other time that the same shall be demanded: Which Security to be granted for the said bygone Annualrents, made up in a principal Sum, shall bear obligement to pay Annualrent for the same, in manner and from the terms after-specified, viz. For a third part thereof, from Whitsonday next, one thousand six hundred and sixty two years; and for an other third part, from Martimesse thereafter, in the said year; and for the last third part, from Whitsonday, in the year one thousand six hundred and sixty three, during the not payment of the said principal Sum so made up, for which personal execution is to be forborn, as for the other principal Sums, by the space aforesaid of six years after Whitsonday last. And without prejudice of the Security to be granted in manner foresaid, it is also Declared and Ordained, that the said bygone Annualrents, are made up and shall be holden and esteemed principal Sums; and that Annualrents shall be due and payable for the same from the terms and in manner foresaid, and that execution shall follow at the instance of those who have right to the same, upon and by virtue of their Bonds, Contracts, and Rights, and of this present Act and Ordinance in the same manner, as if a new Security were already granted in manner and of the tenor above-written.  
And notwithstanding of the premiss, it is hereby Declared, that the Lords of Session shall have power to grant and pass Suspensions for Sums, not exceeding one thousand pounds, upon such reasons as they shall think just.  
And where those who have right to bygone Annualrents are only Liferenters, and have no right to the stock and principal Sum, It is Ordained, that it shall be lawful to them to use execution for the whole bygone Annualrents due to them, as they might have done before the making of these Presents; and that the said's Lords of Session, shall have power to grant and pass Suspensions against the saids Liferenters, in case they shall find just grounds and cause for granting of the same.  
It is likeways provided, that the benefit of the said forbearance, shall only be granted and competent to such Debtors, as shall pay the said years Annualrent within the time foresaid, and shall betwixt and the first of November, compear before any of the Lords of Session with the Clerk, and declare before them upon Oath, that their Debts exceeds the value of four years Rend of their Estate, pertaining to, and possessed by them: which Declaration, extracted under the hand of the Clerk of Register, or his Deputies, shall be a sufficient Security against Personal execution: And for which Extract, the Clerk Register and his Deputies shall have for their Fees the sum of thirty three shillings four pennies Scots, and no more. And it is Declared, that all persons, who shall not by themselves, or their Tutors or Curators, appear and declare within the time, and in manner foresaid, shall be excluded from the benefit of the foresaid forbearance, and shall never be reponed or admitted thereafter upon any pretext whatsoever.  
And the benefit of the foresaid forbearance being granted to the Debtors, or any of their Cautioners, upon the compearance and declaration foresaid, shall only be personal for them and their Heirs and others representing them, and shall not be extended to those who are bound with them, and liable to the said's Debts, unless they also compear and declare, that their own proper Debts and Cautionry for persons who have taken the benefit of this Act, exceeds the value of four years Rend of their Estate, and that within the time and in manner foresaid.  
And for the more ease of the Debtors, it is Ordained, that in case within the time of the forbearance foresaid, the Debtor shall offer to the Creditor a part of his Debt, not being beneath or within the third part of the whole Sums, due by him to the Creditor for the time, the Creditor in that case, shall be holden to accept of the said partial payment, and in case of his refusal, offer being made of a part of the said Sums, not within the proportion foresaid, in presence of a Notar and Witnesses, the Debtor, upon consignation of the same in the hands of the Clerk of the Bills, shall be free of the Annualrent of that part of the said Sum that shall be consigned in all time coming, after the consignation foresaid.  
And whereas the legal reversion of Comprisings, was formerly limited to seven years, His Majesty, for the reasons and with consent foresaid, is graciously pleased to extend the same to ten years in all time coming; and Statutes and Ordains, that all Comprisings, already deduced, and whereof the legal reversion is not yet expired, or which shall be deduced any time hereafter, shall be redeemable within the space of ten years after the date of the same; and all Comprisings deduced since January, one thousand six hundred and fifty two years, and whereof the legals are expired, and all Comprisings deduced before the said month of January, one thousand six hundred and fifty two years, and which were not expired before the said month of January, one thousand six hundred and fifty two years, shall be redeemable within the space of three years, after Whitsonday now last bypast, notwithstanding the legal reversions of the same be now exp●●ed.  
And in case the Lands and others comprised, exceed in yearly Rent and value the Annualrents of the Sums contained in the saids Comprisings, 〈◊〉 of the expense disbursed in obtaining Infeftments thereupon, and the Debtor shall desire the Creditor to possess the Lands and others comprised, it shall be lawful to the Lords of Session, like as the said's Lords are hereby impowered and authorized, upon a Supplication to be made to them by the Debtor and citation of the Comprisers, to appoint the Apprisers to possess such of the said's Lands and others during the legal reversion, as the said's Lords of Session shall think just and reasonable, the said's Debtors always giving possession to those who have right to the said's Comprisings, and ratifiing their possession already apprehended by them (if any such possession they have) of such of the said's Lands and others as the said's Lords of the Session shall appoint, not being beneath in yearly Rent and value of the Annualrents ; or otherways giving to the Creditors (whether they have possession or not) sufficient Security, at the sight of the said's Lords, for payment of the said's Annualrents, during the time foresaid; the said's Lords of Session having always power to determine, whether in the cases foresaids' the Debtor shall give Surety to the Creditor for his Annualrents, or the Debtor not being able to give Surety, the Creditor shall be obliged to take possession of the Debtors Lands: And if the Lords of Session shall appoint, in the case foresaid, the Creditor to be possessed for his Annualrent, then, and in that case, the Debtor shall be holden to deliver the Evidents of the said's Lands to the Creditor or transumps thereof; providing always, that the Creditors right, by virtue of the said's Comprisings, be no ways prejudged after the expiring of the same: And that th● whole Lands and others, both such as shall be possessed by the Debtor, and the remanent of the Lands and others contained in the saids Comprisings, shall pertain to the Creditor irredeemably.  
And because oftentimes Creditors, in regard they live at distance, or, upon other occasions, are prejudged and prevened by the more timeous diligence of other Creditors, so that before they can know the condition of the common Debtor, his Estate is comprised, and the posterior Comprisers have only right to the legal reversion, which may and doth often prove ineffectual to them, not being able to satisfy and redeem the prior Comprisings (their means and money being in the hands of the common Debtor) Therefore it is Statute and Ordained, That all Comprisings, deduced since the first day of January one thousand six hundred and fifty two years, before the first effectual comprising or after, but within year and day of the same, shall come in pari passu together, as if one comprising had been deduced and obtained for the whole respective Sums, contained in the foresaids' Comprisings. And it is Declared, that such Comprisings as are preferable to all others in respect of the first real Right and Infeftment following thereupon, or the first exact diligence for obtaining the same, are and shall be holden the first effectual comprising, though there be others in date before and anterior to the same; and the foresaid benefit given and introduced hereby, in favours of these whose Comprisings are led within the time, and in manner foresaid, is only granted and competent in the case of Comprisings, led since the first day of January, one thousand six hundred and fifty two years, and to be led after the date of their presents, and for personal Debt only, without prejudice always of ground Annuals, Annualrents due upon Infeftment, and other real Debts, and Debita fundi, and of Comprisings therefore of Lands and others affected therewith, which shall be effectual and preferable according to the Laws and Practic of this Kingdom now standing; And it is also provided, that the Creditors, having right to the first comprising, except as is above excepted, shall be satisfied by the posterior Comprisers, claiming the benefit foresaid, of the whole expense disbursed by them, in deducing and expeding the said first Comprising and Infeftments thereupon.  
And further, for obviating the frequent and fraudful practice of the appearand Heirs of Debtors, who are in use to acquire the right of expired Comprisings, and by virtue thereof, to enjoy and possess their Predecessors Lands and Estate, to the prejudice and defrauding of the posterior Comprisings and other Creditors, It is Statute, that in case the appearand Heir of any Debtor, or any other confident person to his behoof, shall at any time hereafter acquire the right of an expired Comprising, already deduced, or which shall be led and deduced hereafter, the said right shall be redeemable from the appearand Heir, or the said confident person their Heirs and Successors within the space of ten years, after the acquiring of the said right, by the posterior Comprisers, upon payment allanerly of the Sums truly paid and given out, for buying and acquiring the saids rights, at the least so much thereof as shall be resting unsatisfied for the same, by the intromission of the appearand Heir, or of the said confident person, or their foresaids.  
And His Majesty, with consent foresaid, doth Declare, That the benefit foresaid introduced hereby anent Comprisings, shall be extended 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 case as to the benefit foresaid, as if the said Adjudications for Debts were Comprisings.  
And in case a Creditor, against whom the benefit of the foresaid forbearance for six years shall be taken, or who hath led or shall lead a Comprising against the Debtor, shall think fit, and be willing and desirous to take his Debtors Lands, or other Estate, or any part thereof for security or payment, and in satisfaction of his Debt, then, and in either of these cases, the Debtor 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 warrandize, and at such rates and prices (if the Creditor be content to buy) as they shall appoint, with certification, that otherways the Debtor, refusing or failing, shall lose and forfeit all benefit introduced in favours of the Debtors by this present Act, as if it had never been made.  
And in regard some persons may have taken advantage of the late times and troubles, by taking and acquiring of proper Wodsets of Lands and others, exceeding the Annualrent of the Sums lent upon the same; and providing nevertheless, by the right of the foresaids Wodsets and express provisions therein, or by writ a part, that they should not be liable to any hazard of the Fruits, Tenants, War, or Troubles; His Majesty, with consent foresaid, Statutes and Ordains, that all such Wodsets, granted since the year one thousand six hundred and forty nine, shall be restricted to the ordinary Annualrent of the Sums whereupon the same are redeemable; and the said's Wodsetters, shall be countable for the superplus of the Mailes and Duties and other benefit of the same, exceeding the Annualrent of the said's Sums, and the same shall be imputed and ascribed, in satisfaction of the said principal Sums pro tanto: And in case any such Bargains and Rights, shall be made and acquired hereafter, His Majesty, with consent foresaid, Declares the same unlawful and usurary, and the Contraveeners shall be punished severely as Usurers, conform to the Laws and Acts of Parliament against Ockerers and Usurers.  
And as to proper Wodsets, granted since the time foresaid, where the Creditor undergoes the said hazards, and the same are affected with the ordinar provisions and clauses irritant, in case of not payment of the Sums given out and due upon the saids Wodsets, at the terms and in manner mentioned in the saids Rights, albeit the said's Wodsets and Provisions be lawful; yet His Majesty, considering and having respect to the difficulties of the times, Statutes and Ordains, with consent foresaid, That the said's Clauses irritant, shall not take away the Heritors right, they always redeeming within the space of five years after Whitsonday last: And in case the Debtors conceive, that they have dis-advantage by the said proper Wodsets, and shall desire to redeem the same, it shall be lawful to them to redeem at any term of Whitsonday or Martimesse they please, notwithstanding of any provision to the contrair in the said Wodset-rights, or any other right a part suspending the redemption thereof: Likeas it is Declared, That the Clauses of requisition contained in proper Wodsets, granted since the year one thousand six hundred forty nine years, shall be effectual and no ways suspended nor prejudged hereby; But prejudice always to the forbearance of personal execution in manner above-written. And where the Creditors and Wodsetters have transacted with their Debtors and have acquired irredeemable rights, for, and in place of their former Wodsets, it is Ordained and Declared, That when, and at what time soever the said's Wodsets were granted, whether before or since the year one thousand six hundred and fifty years, the said's transactions and irredemable rights acquired by the Creditor for the same, are and shall be valide and effectual, and shall no ways be prejudged by these presents.  
And further, His Majesty, with consent foresaid, doth Declare, That in case any Debtors have by voluntait agreement betwixt them and their Creditors, or any of them, renounced the benefit of any Acts of this nature, concerning Debtor and Creditor, made, or to be made, the said agreement shall be of force and effectual, and shall not be prejudged hereby, without prejudice always to the said Debtor of the prorogation foresaid of the legal reversions of Comprisiings led and deduced against them, and not as yet expired, notwithstanding of the agreement and renounciation foresaid.  
And because, before the year one thousand six hundrens and fifty, when money passed at eight or ten per cent. divers proper Wodsets were then made and granted and are yet unredeemed; and since the beginning of January, one thousand six hundred and fifty, there be divers persons, who taking advantage of the times, refused to lend their money, unless they got proper Wodsets of Lands and Teinds, at extraordinary advantages, to the heavy prejudice of the Debtors: Therefore, His Majesty, with advice foresaid, Statutes and Ordains, That in time coming, during the not requisition of the Sums whereupon the said's Wodsets are redeemable, and during the not redemption of the same respectively, if the Debtors shall give sufficient Security to the Wodsetter for payment of his Annualrent, during the not redemption, or not requisition, as said is; In that case, the Creditor, Wodsetter, shall be holden to renounce and quit his possession of the said's Lands and Teinds, in favours of the Debtor and others having right from him, At least if the Wodsetter shall be content to retain the possession of the same; In that case all the free Profits and Rents, which he shall have or uplift out of the said's Lands, shall be restricted to six per cent. yearly of free money, and the Wodsetter shall be countable to the Debtor or others having right from him for the superplus; and that without prejudice of the Wodsetter's real Right and Infeftment, ay and while the Lands be redeemed, and the principal Sum whereupon the same is redeemable shall be satisfied. It is always provided, that where any Creditor hath had loss by his possession of the wodset Lands and others since the date of his Wodset, So that he hath not received as much free Rent as communibus annis hath extended to the Annualrent allowed by Law for the time, all charges and burdens being deduced, in that case, it is provided that the Wodsetter shall be first satisfied of what he wants before 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 Wodsetter's bygone loss, there shall be allowed what he hath disbursed upon reparation and building of Tenants houses, Milnes, and for the advantage of the ground; and generally all other expense which the Wodsetter was put to, and what loss he sustained in reference to the said wodset Lands, Rights and Securities thereof any manner of way; and what he hath lost by Quartering, Cease, waste Land, depauperated Tenants, or by Tenants who were or are not able to pay, unless the ground should be casten waste: And because the Wodsetters' probation of his saids loss may be difficile, he not conceiving that there should be necessity for any such count, or that there should be any alteration made in the right and possession of his proper Wodset, Therefore, His Majesty, with advice foresaid, doth allow the Lords of Session to take such reasonable probation as in equity they shall think fit: And if there be any deficiency, to take the Wodsetters' oath in supplement; and where the Wodsetter is in natural possession of the wodset Lands by dwelling thereon or labouring the same with his own Plough and Goods, or otherways, having the same plenished with his saids Goods, in that case, he shall not be holden to remove from his said possession, but at the ordinary term of removing, and that he be lawfully warned forty days before, and after sufficient Security shall be made to him in manner above specified before the said warning.  
And His Majesty having granted so much favour, benefit and indulgence to Debtors as the like cannot be shown to have been granted at any time in this Kingdom, doth Declare, Statute and Ordain, That the Laws and Practic of the Kingdom concerning Debts and payment thereof and diligence and execution for the same, and concerning proper Wodsets, where the Creditor-wodsetter, hath the hazard of Fruits, Tenants, War and others, shall be observed inviolably, and be of full force, vigour and effect in all time coming, excepting so far as the same is altered, innovat and repealed by this present Act.  
FINIS.