Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES FERGUSON OF KILKERRAN.

Countess of Caithness
v.
Her Creditors

Date: 10 August 1757

Click here to view a pdf copy of this documet : PDF Copy

This case is reported by Kames, (Mor. Pers. and Trans. App. No. I.) Lord Kilkerran's note is as follows :—

“August 10, 1757.—This question was much agitated among the Lords.

The President particularly laid it down as law, that a creditor, however alimentary, cannot affect an alimentary provision for furnishings in a prior year. On the other hand it was thought by others, that, however it may have been found, that an alimentary provision could only be affected for furnishings within the year, that could never mean more than that in competition between furnishings within the year, and prior furnishings, the furnishers within the year are preferable; but that the elapsing of a year from the date of the furnishings should forfeit the creditors' right, cannot be maintained, and one of the Lords went so far as to say, that if it was law, it was one instance of a contradiction of law to common sense.

The President, in prosecution of the aforesaid proposition, further said, that, as we had modified L.200 of aliment to the lady, which the House of Peers had affirmed, this was a proper aliment, and to be judged of by the rules that govern alimentary provisions, and added, that we could not decern any thing to a wife separate from her husband, but as an aliment; and concluded that the lady ought in this case to be preferred to the creditors.

The answer to this was in part made, supposing it to be proper aliment, but even that was doubted ; it was a separate maintenance it is true, but not strictly alimentary, when so great an addition was made to her former provision; and to suppose that given to superfluities, when her creditors who had furnished to her, when she had little to spare her, (for all the debts were open accounts of furnishings,) were to catch at words and neglect things.

The Lords preferred the Creditors to the extent of the L.100, to which they had acquiesced in her preference.”