Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
John Burgan, and Christian Dick, his Spouse, v. Ker and George Fleming
Date: 5 July 1698
Click here to view a pdf copy of this documet : PDF Copy
John Burgan, wright, and Christian Dick, his spouse, having pursued Ker, and George Fleming, her present husband, for payment of a debt due by one Hog, her first husband, as vitious intromissatrix with his goods; and decreet passing against her, she now, in a suspension of that decreet, craves retention of the goods, in respect she had paid all the preferable privileged debts, as the medicaments to her husband, his funerals, the servants' fees, and house-maill.
Answered,—These cannot be allowed now; because they were founded upon before obtaining the decreet, and then repelled because not liquidated nor cognosced. Replied,—I have now obtained a decreet of cognition of the same, and they being uncontrovertedly preferable, as they would have defended against the passive title if they had been liquidated then, so they must have the same effect now.
The Lords considered, If the pursuit had been recent after the husband's death, so as there had been no competent time to have constituted herself the creditor in those debts, then she might plead retention now; but, she having suffered three or four years to elapse, the Lords found her liable; else there should never be a confirmation, but relicts would intromit at their own hands summarily, and, when pursued, would obtrude these privileged debts: and that she had not called the creditor who interpelled her to the decreet of cognition; for though, regularitcr, she needed not cite him, yet, having obtained a decreet against her before she intented the cognition, she ought not to have miskenned him.
