Excerpt from Manual of the Law of Insolvency and Bankruptcy: Comprehending a Treatise on the Law of Insolvency, Notour Bankruptcy, Composition-Contracts, Trust-Deeds, Cessios, and Sequestrations

A claim may be established or cut down by three kinds of evidence: 1. By writing; 2. By oath and, 3. By witnesses.

The debt may in all cases be proved or disproved by writing or oath - i. C., it may be proved by the writing or oath of the debtor, or disproved by the writing or oath of the creditor. But proof by witnesses is more, circumscribed for while, as a general rule, all contracts may be so proved, yet, where there has been no consideration for the debt, it can only be evidenced by the writing or oath of the debtor.

The first mode of proof is incomparably the best for the pos session of a writing - such as a bill of exchange - enables the creditor Within a week to put the debtor in prison or attach his goods. N 0 process is required to constitute the debt - the mere possession of such a document puts the debtor, and not the creditor, in the position of pursuer; for if the debtor has any objection to the debt he must raise a process of suspension at his own instance, and before he is allowed to proceed he must, as a rule, consign in court the amount of the bill, or find secu rity for the payment of it. When no such writing exists, but the debt stands on an open account, a regular process for ob taining a decree must be raised by the creditor, during which the debtor may, if he is so disposed, put the creditor to vast expense and trouble: he may take advantage of all the forms of court he may have a pleading at every stage he may cause the creditor to prove his whole case; and, in addition to this, the creditor, in such instances, always runs the risk of losing the evidence of his witnesses from death and other causes.

Where the creditor has no such document as a bond or a bill, but requires to raise a law process for the purpose of obtaining such judgment or decree, the result is to put him in the same position practically as if he had had a bond or bill.

This process must be raised in Scotland. No process raised in any foreign court against a person whose domicile is in Scotland is of any avail. In matters of civil jurisprudence, England, Scotland, and Ireland are foreign countries to each other.

About the Publisher

Forgotten Books publishes hundreds of thousands of rare and classic books. Find more at www.forgottenbooks.com

This book is a reproduction of an important historical work. Forgotten Books uses state-of-the-art technology to digitally reconstruct the work, preserving the original format whilst repairing imperfections present in the aged copy. In rare cases, an imperfection in the original, such as a blemish or missing page, may be replicated in our edition. We do, however, repair the vast majority of imperfections successfully; any imperfections that remain are intentionally left to preserve the state of such historical works.