Scottish Court of Session Decisions

Subject_1 ALIMENT.

Mary Boswell
v.
David Boswell

1737, Nov. 18.
Case No. No. 6.

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Some of us doubted, whether we ought to extend our former decisions of aliment to this case, where this defender had an employment? Others doubted, whether we should continue the practice of extending the act for alimenting ward vassals to the case of life-renters and heirs? But I own, I thought that matter had gone too far by our former decisions to alter it now, though I think the extension nowise founded on reason or the analogy of law. But I doubted, whether the heir could bring the annualrents of personal debts into the calculation, to exhaust the rent not liferented? And, on the whole, as there was no evidence of the extent of the rent or debts, we remitted the case to the Ordinary.—13th January.

The Lords thought, that the relict's aliment to the term should be proportioned to his estate, not to her jointure, and therefore gave her only a proportional part of the conventional aliment that she had during her separation from her husband, unless she would prove that the circumstances of the estate could bear more.—(N.B. Arniston doubted whether an heir of an encumbered estate should at all be burdened with the relict's aliment?) And they found that she had right to the household plenishing, heirship included. Some founded their opinion upon this, that there was not only a reservation but a disposition of the household furniture, whereas had it been barely a reservation or exception, it could go no farther than her legal right would have gone, and consequently would not have included heirship. Arniston thought, that though it had been only a reservation or exception without an express clause disponing, yet being a particular subject, (household plenishing) it would have implied a disposition, and had the same effects.—18th Nov.