Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Lady Barncleugh
v.
Creditors

1685. February.

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A relict having pursued an adjudication of her husband's lands, upon his obligement, in their contract of marriage, to relieve her jointure-lands of all incumbrances, that she might come in within year and day of his other creditors adjudgers;—it was Alleged for the other creditors, That she could not adjudge for relief, because there was no distress;—and 2d, The quantity of the distress that could emerge was not liquid. Answered, The grounds of distress were obvious, viz. infeftments prior to her right; and the grounds of the distress must be supposed as large as the ground of the infeftments, and consequently liquid. The Lords, considering that the relict would be absolutely cut off if she came not within year and day, and there being nothing said against the grounds of the distress condescended on, allowed her to adjudge for the whole, with this express provision, That her adjudication should only take effect in so far as distresses did emerge, and the legal should run from the time of actual distress.—February 1685, Lady Barncleugh agaomst Creditors.

And, in November 1685, the Lords sustained an adjudication with the like provision, at a cautioner's instance, who was distressed by a charge of horning, but had made no payment. Vide No. 860, [Mary Bruce against Sir Patrick Hepburn, January 1684.]

Page 77, No. 316.