Scottish Court of Session Decisions

Subject_1 BENEFICIUM COMPETENTIÆ.

Hogg
v.
Hogg

1749, Nov. 30.
Case No. No. 3.

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We all agreed that John Hogg had no beneficium competentiæ against Mrs Hogg his daughter-in-law, but the majority thought that he had against his grandchildren; but the difficulty was in the execution. In the houses in Edinburgh he had an infeftment of annualrent for L.90 preferable to them. Only we had found them preferable, though their claim was only on a personal obligement by their father, whereon they had adjudged, in respect of his misrepresentations in the marriage-contract, but reserving his beneficium competentiæ and therefore we thought we could sustain his infeftment to that extent. But then as to the L.1000 sterling in Saughton's hands, the residue of the price of Cammo, he had no interest there, and therefore the beneficium competentiæ did not apply there. 2dly, We thought that in modifying that competentia, we ought to have regard to his blind daughter, who was really secured on the L.1000 for the interest of 3000 merks during her life, and that not only during Mr Hogg's life but also during her's, because it was a duty of nature on him to provide for such a child's aliment even after his death. 3tio, We thought that in the beneficium competentiæ we ought to consider the necessity of the parent more than the necessity of the child, whereas in a process of aliment against a child, the defenders own necessity must be first provided for; and 2dly, That beneficium is competent though there were other nearer bound jure naturæ to aliment, as in this case John Hogg's two sons, and on the whole we modified to John Hogg for himself L.30 sterling, and for the use of his daughter L.100 Scots, and after his death the L.100 to be paid to the daughter herself; and left it to the Ordinary to hear them as to the execution. 30th November we adhered, so as the beneficium competentiæ should not affect the widow's liferent, though they thought it would affect the fee. I was in the Outer-House. Reversed in Parliament. 1 (27) March 1750.