Scottish Court of Session Decisions

Subject_1 PRIVILEGED DEBT.

John Hall, late Bailie of Edinburgh, and other Creditors of the Relict of James Masterton,
v.
Margaet Thomson, and other Creditors of the said James Masterton

Date: 29 July 1675
Case No. No 8.

Servants' fees are so far privileged, that they may be warrantably paid before confirmation or dissolution of the family, to free the executors, but not being paid, they were found not privileged.

Click here to view a pdf copy of this documet : PDF Copy

In a double poinding raised at the instance of Stennis Milne, in whose hands the whole goods and insight plenishing which were in the house, and possessed by Alice Thin, relict of the said James Masterton, were sequestrated, until he should be first paid of the house mail; it was alleged, for the creditors of the husband, James Masterton, that they ought to be preferred, because he had disponed his whole goods and moveables in favour of the said Alice, his relict, with the burden of his debts; and therefore, whatsoever goods she had by the same disposition, it was really affected with his creditors' debts. It was answered, and alleged for the creditors of the relict, That she never accepted of any such disposition, nor made use thereof, but on the contrary, any intromission she had was as executrix to her husband, whereby the property of the goods became hers, and she might dispose thereof. Likeas, she did dispone the same in favour of Margaret Masterton, her sister-in-law, with the burden of her proper debts, and so her creditors had best right thereto. The Lords did find, That if the said Alice Thin had only right as executrix, that the proper goods and gear which belonged to the husband, and were intromitted with by her, being yet extant, would belong to the husband's creditors, and so preferred them conform to a former practique in the case of the Lord Lee against Veitch, No 1. p. 3123, where the Lords did ordain it to be a practique, that the creditors of the defunct should be preferred to the creditor of the executor as to his goods; but as to any goods that were acquired by the relict herself af-the husband's decease, and did only appertain to her, and were never possessed in common, they did prefer the relict's own creditors to the creditors of the husband, who hath never done any diligence to affect the same, nor had recovered decreet against the relict, as executrix, to constitute her debtor during her lifetime.

1675. November 24.—In the double poinding before-mentioned, wherein the creditors did crave preference, it was alleged for David Niesh, That he being a domestic servant for many years to James Masterton, and to his wife after his decease, for which he had recovered decreet, that he ought to be preferred to both their creditors, because servants' fees are a privileged debt, and preferable to all others. It was answered, That albeit by our law, servants' fee are so favourable a debt, that they may be paid before confirmation by intromitters with defunct's goods, the time, or after their decease, yet if they have not been paid by any representing the defunct, they are not privileged debts as to all other creditors. The Lords did refuse to prefer Niesh, there being no ground in our law for such privilege, which did only extend to give warrant to pay them during their actual service, and before the family be dissolved.

Gosford, MS. No 796. p. 500. & No 808. p. 508.

*** Dirleton's report of this case is No 141. p. 9541. voce Husband and Wife, The case which follows is the sequel of the above.