Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Anent The Arresting of Corpses
Date: 1 June 1677
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It was queried amongst the advocates, If a dead corpse might, in the law and practice of Scotland, be arrested and stopt from interment for debt by creditors; on occasion of the Countess of Winton, who died this day, and being addebted to merchants and to sundry trades-people for vivers and other necessaries, they made a great clamour, being poor, and fearing the Earl, her husband, because of the differences, would not own her debt farther than her annuity of 6000 merks reached, which was all forenailed already: They were talking of arresting her body. But certainly though it be tolerated in Holland and some other places, it is reprobated by us as a most barbarous, inhumane custom. Yea the law condemns it for irrational. See Harprecht, in Commentario, ad § 9 Institut. de Jure Naturali, Gentium, et Ci-vili, numero 17; where you have express texts prohibiting it, sub poena omissionis debiti. Yea, mortuo bove legato, nec corium nec caro debetur, L. 49 in princ. D. de Legatis, 2do; Multo minus hominis debentur exuviæ, mortuo homine. Vide no-vellam 60. See Vantien's Notes on the title Instit. de Jure Naturali, Gentium, &c. It could be done upon nothing with us, (except it were upon an express supplication to the Lords of Session, or to Secret Council, which would never be granted,) unless upon a caption which no messenger could execute, since it commands to apprehend the person of such a man or woman; now, being dead, it is no more a person, no more a hypostasis, the union being dissolved. However, this arresting has been attempted as to persons dying in prison, but was never allowed nor sustained; only I have heard that a man who dies in prison, it is, ipso facto, a discharge of all his debt; this, I think, holds in England, but not with us. Yet when any person dies in the tolbooth, the magistrates cause sight them before famous witnesses, especially the creditors, (if they can be got,) to shew they are truly dead, that no fraud be done of liberating living folk under the pretence as if they were dead.
