Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Lady Kinfawns v. The Creditors of Carnegie of Kinfawns
Date: 7 November 1694
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Lady Kinfawns, by a petition, represented, That she brought 30,000 merks of tocher with her, whereof 22,000 merks was in my Lord Nairn's hand, secured on infeftment: That though she had conveyed it in her contract-matrimonial to her husband, yet nothing followed thereon; and she stood last infeft; and her husband's creditors had not affected this sum; and, being provided in a jointure of 2500 merks, she desired the Lords would allow her to charge for the annualrent of this sum, to be ascribed in payment of her liferent, pro tanto, during the dependence of the competition; from the event whereof it will clearly appear there is a considerable superplus estate above the payment of her husband's debts.
The Lords found the disposition in the contract denuded her so fully, that her husband's heirs and creditors might exclude her; so she could not legally charge for that sum. Yet, after weighing all circumstances, they gave her a year's interest of said sum by way of aliment, and to be imputed in her jointure; she finding caution to refund it in eventu that the creditors be found preferable to her. Some called this equity, but not law; yet it is frequently done to extraneous creditors.
