Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Sir William Menzies v. Marion Riccart, Spouse to James Claik of Wrights-houses
Date: 10 July 1707
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Sir William Menzies of Gladstanes being creditor to James Clark of Wrights-houses, and having adjudged, and a process of sale having been raised, he gives in a bill, craving the lands might be sequestrated in a factor's hands during the dependance of the ranking of the creditors. Compearance is made [for] Marion Riccart, spouse to the said James Clark, who alleges, That no sequestration could be granted of her locality, being only the house and yards, and some adjacent tenements and acres; because, when her husband fell into difficulties, she applied to the Privy-Council, showing, that she was provided in a considerable jointure long prior to the creditors' rights, and he having retired out of the country, she and her children could not starve; and therefore craved a small modification of an aliment. Which the Privy-Council, in 1688, accordingly gave her out of the foresaid fund, and which she has peaceably possessed since, and so has more than the benefit of a possessory judgment; and as the Council are in use to grant small aliments to wives in such hard circumstances, so the Lords of Session use not to take away decreets of the Privy-Council.
Answered,—Whatever she might plead if her husband were dead, she can never found upon her liferent-infeftment while he is yet alive; and the Council's decreet is parte inaudita, none of the creditors being heard to object against the same, and given in favours of a Papist, who then got whatever they demanded. And though the Session does not meddle with the Privy-Council's decreets, yet where it comes to be questioned, in a competition of creditors, it becomes a civil right, and necessarily falls under their cognizance. And a precarious aliment can never give the benefit of a possessory judgment, though clad with never so long possession: and there was neither law nor justice in giving her the aliment, her husband being divested, long before that time, of the estate, by adjudications led against him; and she has had benefit enough to have enjoyed it these nineteen years unquarrelled. And he repeats his reduction on that head, That her husband was bankrupt before the aliment was settled on her, and was denuded by his adjudication, and those of others, and so can never compete with him.
Replied,—That whatever his reduction might operate, if they were proceeding in the ranking, yet here the question being only anent the sequestration, and if it should extend to the lands and houses she is in possession of, it can never be received summarily to dispossess her hoc ordine, but must be reserved to the competition of the creditors, to be discussed there.
The Lords refused to take in Sir William Menzies his reduction incidenter here in the sequestration, but left him to prosecute it in the ranking; though there is nothing more usual than to receive such reductions, and allow them to repeat their reasons summarily. But the Lords inclined to let her possess, though it was but lamely founded, till it were formally quarrelled and taken away in the ranking, where Sir William would certainly prevail.
