Petition 1766

i j c f ■ i. u* ^ • *• • — * * 4 CUnto the R igh t Honourable the Lords o f Council and Session, • • A 4 * j i i i T H E P E T I T I O N O F Mrs Anne N ie lson, Relict of Mr W illiam Sloan, late Minister of the Gospel at Duns core; R ichard N ielson of Corsock, her Brother; and W illiam T od, Mer­ chant in Lond, her Uncle, Humbly sheweth, T H A T in the Process at your Petitioners Instance, a-gainst the Executors of the said deceased Mr WilliamSloan, the Lord Kennet Ordinary, after a Hearing at the Bar, upon the 20th of December last, pro­ nounced the following Interlocutor: “ The Lord Ordinary having considered the above Debate, with the Account, Missives, and Bond libelled on, finds, That the deceased William Sloans Letter to the Pursuer Richard Niels on, obli­ ging himself to pay to the Pursuer whatever he should lay out for his Sister, as to Cloaths, tabling, or otherwise, could only mean what he should reasonably lay out, Re- A “ spect spect being had to Mr Sloan s Circumstances. Finds, That by the Account libelled on, the Pursuer, Richard Nielson, gave to his Sister, in the Space of one Year, from the 11th June 1752, to the 1st June thereafter, the Sum of L. 45, 3 s. 6d. Sterling; besides L. 28 Sterling, stated as paid to two Milliners for her: Finds, That the said Sum was most extravagant for the Circumstances of the Parties; and therefore restricts the same to L. 20 Sterling. Finds, That the said Richard Nielson is intitled to the said Sum of L. 20 Sterling; and also to the Sum of L. 1: 10: 7, paid out for three small Articles mentioned in the Account, and to the Sum of L. 1 1 Sterling, paid to Murray and Muschet per Re- ceipt, but finds them not intitled to the other Sum of * «... k* ^ 8 Sterling, stated as paid to them, as no Voucher is pro­ duced therefor. Finds the said Pursuer is intitled to a rea- sonable Board during the Time he alimented his Sister in Terms of the said Missive, but finds, That L. 30 Sterling yearly, as claimed by him, is extravagant, considering the Circumstances of the Parties; and modifies the same to L. 12 Sterling yearly, amounting to L. 60 Sterling, from 1st March 1752, to 1st March 1757, from which there falls to be deduced, as admitted by the Libel, the Sum of L. 13, 15 s. Sterling. Finds, That the whole Sums found due to the said Richard Nielson, deducing as aforesaid, amount to the Sum of L. 68: 15: 7; for which Sums decerns a- gainst the Defenders. Finds, That the Pursuer Anne Nielson} and the Pursuers Richard Nielson and William Tod, as Tru- stees for her, in virtue of the Bond libelled, are intitled to the Sum of L. 30 Sterling yearly, from the 1st March 1757, to the Time of William Sloan's Death, which hap­ pened on the 7th April last; and to the Sum of L 20 Sterling yearly thereafter, during the said Anne Nielson's Life, while her Mother Janet Rae is alive; and to the Sum of L. 11 Sterling yearly, during her Life, after the Decease of her said Mother, payable at two Terms in the Year, Whits unday Whitsunday and Martinmas equallv; and decerns against the Defender for the Annuities already due, and in Time coming, the Term of Payment being first come, and by­ gone. Finds, the said Anne Nielson intitled t o Mournings; and modifies the same to L. 1o Sterling; and decerns a- gainst the Defender therefor. But finds the said Anne Nielson not intitled to the Sum claimed from William Sloan's Death, to the Term of Whitsunday last, for Aliment, in regard that the Annuity settled on her by the said Bond was sufficient for that Purpose; and therefore assoilzies the Defender therefrom, superseding Extract till the 15th Day of January next ” That both Parties having represented against this Interlo­ cutor, his Lordship, upon the 26th of July 1766, pronoun- ced the following one: “ The Lord Ordinary having consi- dered this Representation, with the Answers thereto, and the Counter-representation for the Defenders, with the An- swers thereto, finds, That in summing up the Articles found due to the Pursuers by the Interlocutor represented against, previous to the 1 st of March 1757, the Sum is made to amount to L. 68: 15 • 7 Sterling, in place of L. 78: 15 • 7 Sterling: But finds, That the Pursuer Richard Nielson has not instructed, that the L. 1 1 Sterling paid by him to Janet Muschet. was paid to her on account of Anne Nielson; and therefore finds, That he cannot claim the same from the Defenders; and therefore that the said Sum of L. 78, 15 s.7 d. Sterling, ought to be restricted to the Sum of 67, 15 s.7 d. Sterling. Finds, That as the Defenders are Execu­ tors decerned and confirmed to the deceased Mr Wilam Sloan, they are not personably liable to the Pursuers for the Sums found due; and therefore only decerns against them cognitionis causa & secundum vires inventarii; and with these Variations, adheres to the Interlocutor represented against; and refuses the Desire of both Representations. That the Petitioners thought it their Duty again to submit this this Interlocutor, by Representation to the Lord Ordinary’s Review, and to pray, as they had done in their former Re­ presentation, that the Lord Ordinary would allow them to amend their Libel with regard to the Sum of L. 15, 13 s. which by Mistake, had been therein deduced from, in place of be­ ing included in the gross Sum to which their whole Claims amounted. 2do, To find Annualrent due on the Petitioners Advances. And, lastly, to allow Expences. That whilst the Cause remained in this Shape before the Lord Ordinary, the Defenders thought proper to apply, by Petition, to your Lordships, for an Alteration of said last-recited Interlocutor: And the Court, upon the 21st of November 1766, gave Judgment in the following Terms: The Lords having advised this Petition, with the Answers thereto, they assoilzie from all the Claims libelled preceding the 1st of March 1757. Find, That the Pur­ s e r cannot compete with her Husband’s onerous Credi­ tors upon the alimentary Bond for L. 30 Sterling yearly from the 1st of March 1737, to the Time of her Hus­ band’s Death; and therefore restricts the same to L. 10 Sterling yearly during that Period: And find, That she is preferable to her Husband’s nearest of Kin for the re­ maining L. 20 Sterling. Find the Pursuer is not intitled to Mournings; and remit to the Lord Ordinary to proceed accordingly, and to hear Parties Procurators on the other Points in the Cause; and to do therein as he shall see just ”... By this Interlocutor, the Petitioner A nne Nielson finds herself reduced to the deepest Distress. She was born a Gentlewoman of a good Family: She was married to a Man of respect ful Character, and of Fortune then sufficient to maintain and uphold her in that Rank. Upon the just Belief of that, and upon the Faith of her Husband’s special Obligation, her Relations advanced to her the Necessaries of Life; and during a long Course of Years, expended consider- able able Sums upon her Subsi stence; and If they are now to be deprived of these, as it is now impossible for her to reimburse them out of the small Sums allowed to her, she must end her Days with this miserable Reflection, that having proved a Burden to her Friends while living, by Advances which they were ill able to afford her, Inability to repay them must load them with a heavy Loss, which their generous Interpo- sition in favour of her and her Husband did not merit, and which they had no Reason to expect from her said Hus- band’s Situation. The Petitioner’s Affliction is very much increased by this, that by the Defenders artful Tale, it would seem, in place of appearing an Object of Compassion to the Court, which she truly is, her Conduct has been represented as meriting your Lordships Indignation: And her present Action has been set forth as a fictitious Claim, now trumped up after her Husband’s Death, merely with a View to disappoint the Claims of more onerous Creditors; and who, from thence, it may perhaps have been presumed, were prior ones. She hopes therefore she will be pardoned for submitting said In­ terlocutor to your Lordships Review, for praying an Altera­ tion of it; and by a candid Narrative of the Circumstances of her Case, for endeavouring to place her Conduct in that Point of View, in which she humbly apprehends it ought to be regarded. In order to this, the Court will please to be informed, that the Petitioner, when a Girl of seventeen, was prevailed with to listen to the Addresses of the deceased Mr Sloan, then a Preacher of the Gospel. She was come of a good old Family, and from many respectful Connections in the Country, where her Father’s Estate lay, as well as private Friendship. It was no doubt reasonable in Mr Sloan to expect that this Inter­ marriage might contribute very much to his Advantage. On the other hand, Mr Sloan was a Man who had received a ve­ ry genteel Education from his Father, so as to fit him either B to- to Preferment in the Church, or indeed to any other Profes- sion in Life. His Father, a Man of Substance, had left him L. 300 Sterling, and he had in the Year 1 749, and not after the Marriage, as set forth by the Defenders, succeeded to a very considerable Fortune by an Uncle, which in all made up a Patrimony of L. 14 or 1500 Sterling, and besides this, he had a Claim, or the Prospect of it, for an Estate of above L. 150 yearly, which was since decided against him.. In these Circumstances, it was neither unnatural nor im­ proper in the Petitioner to yield to Mr Sloans Addresses. And as Mr Sloan was much farther advanced in Life than her, it will not appear surprising, that at so early a Period, the 17th Year of her Age, the Petitioner should have been directed by him as to the Manner in which this State should be entered into, or should have agreed to a private Marriage, in which whatever Transgresio n it might be against public Order, there was surely on her Part no very great Crime. Neither will it appear extraordinary, that from the same In­ attention there was no formal Contract of Marriage executed betwixt the Parties. The Petitioner had been guided by Mr Sloan as, to the Form; and she trusted his Honour as to the Settlements; knowing at the same time, that as he had consi- derable Substance, as well as a reasonable Prospect of Ad­ vancement in the Church, she would have legal Rights, which in all Events would be secure for her. The Petitioner has however had just Reason, long and deeply to regret the Want of these so necessary Precautions, by the Irregularity of their Marriage. Mr Sloan was prevent­ ed from taking her home, and obliged to conceal it with the greatest Care; and nay. to cover it with the deepest Disguise: The discovery he apprehended would have deprived him of the Character of a Preacher, and would unquestionably have re­ tarded, if not been fatal to his Preferment in the Church; he therefore proposed for the greater Security, that the Petition­ er should live with her Mother at Edinburgh; should bear ' the the Name, and support the Character of a young Lady with­ out a Husband; a Situation which undoubtedly required a much greater Expence both in living and in Cloaths than. Mr Sloan might have supported her for as his Wife: But as it was necessary for his Interest, the Petitioner, as became her, complied with the Request, however disagreeable; and he on his part, as it was reasonable that the Lady's Friends should be satisfied as to the Truth of their Marriage, and reimbursed of that Expence which his particular Circumstances so necessarily put them to, wrote to Mr Richard Nielson the Petitioner s Brother, the two following Letters for the above Purpose. Sir, By this Missive I acknowledge myself married to Miss Anne Nielson, Daughter to John Nielson late of Corsock; but as it is not prudent the Discovery of it should be made be­ fore I am in settled Way in Life, I depend on your Friend- ship, that it shall be a Secret till that Time. I am, Sir, your most humble Servant, (signed), • — 4 4 — C«. 4 k C 6 ^ Ad- dressed, To Mr Richard Nielson, Merchant in Edinburgh. The second Letter, of the same Date, is in these Words: Sir, By this Missive I oblige myself to repay you whatever you shall lay out for your Sister Miss Anne Niels on, as to Cloaths, or tabling, or otherwise. I am, Sir, yours, &c. (Signed) • — 4 4 4 C«. 4 k C 6 ^8 Addressed, To Mr Richard Nielson, Merchant in Edinburgh. The Intention of this Letter was to be a Fund of Credit for his Wife, as well as a Ground of Action to the Petition­ er Richard Niels on, for Payment of the Sums disbursed by him. Upon the faith of this, said Petitioner advanced to his Sister in Cash, for the Purchase of Cloaths, and other Necessaries, to a very considerable Extent. The first Year, which was the most Expences, his Advances amounted to L. 41, all ready Money, except the Price of a Tartan Gown, and two Accounts to Murray and Muschet, Merchants, who supplied her with wearing Apparel As to which, though the Receipt for L. 8 was not produced, there can be no sort 8,. “ of of Doubt, it being regularly marked in the Petitioner and Merchants Books, as paid for her Behoof. And as to the Sum of L. 11, though the Receipt does not specify it was for Mrs Sloan's Behoof; yet as it is set down in the same Way, and can be proved to have been for her, it was an e- qually just Claim against Mr Sloan. In 1753, Mr Sloan, by the Interest of the Petitioner's Friends, procured the Charge of Dunscore, a Settlement near L. 6o a-year, with a very valuable Glebe; which more pro­ perly indeed deserves the Name of a Farm. In January 1754, the other Petitioner Mr Tod, who, as it would appear, had made some Inquiry concerning his Niece’s Marriage, received from Mr Sloan the following Letter. Sir, As my Marriage with your Niece has caused you in­ terest yourself in her Behalf, I must own myself greatly obliged to you for the moderate and prudent Measures, which at my Desire you have agreed should be followed. My Character as a Clergyman makes a private or clande- stine Marriage fatal: And as before I was ordained a Minister, it was absolutely necessary to keep our Marriage a Secret, otherwise I must have renounced all Hopes of succeeding in that Way; so now it is equally important to continue the same Plan for some time. The same Law* which would have prevented me from getting a ministe- rial Character, would deprive me of it after it is got: And I should, in all human Probability, be deposed, was our Marriage now to be known. But as no Offences of that kind can be inquired into after the Lapse of five Years, it will not be necessary, that this Marriage be kept a Secret any longer than for three Years. And as I have hitherto maintained my Wife in the best Manner my Abi­ lities would allow, I am still willing to do so, according to the Terms in the Bond, till such t ime as we can ac­ knowledge our Marriage publicly, and have the Comfort of living together. It is her Interest, as well as mine, “ this this Plan be followed out: And as you seem to be convin­ ced of it, I hope you will be able to persuade her, and her other Friends, to keep the Secret for some time It has some how taken a little Air, which we must both con­ cur to discredit, so as an Inquiry be not set on Foot by the Presbytery. But in case such an Inquiry should be made, whatever she, or any of her Friends, may be obli­ ged to say for that Purpose, I do solemnly declare, shall have no real bad Effect against her: And for that Purpose, I am willing to do any thing, or come under any En­ gagements that can be devised. God forbid I could be ca­ pable of making a bad Use of it, it she should, in the mean time, be obliged to refuse our Marriage: And there­ fore I am most willing, in all Events, to preserve both her Honour and comfortable Living. I shall give you an Ob­ ligation to pay you a reasonable Sum for her Aliment du­ ring the three Years we must necessarily keep asunder; and to pay any Sum thereafter you think proper, till I pu­ blicly acknowledge her, and live with her as my Wife: And I shall also make a Provision for her, in case of my Death. I hope these Things done on my Side, will ena­ ble you to persuade Lady Corsock her Mother, and Mr N ielson her Brother, to continue the Plan of Secrecy which has hitherto been followed. I shall be glad to meet with you, and adjust all these Matters. Mean time, I remain, Sir, your affectionate Nephew, and most obedient Ser­ vant, (signed), T H. 4 k C 6 ^8 Addressed, To Mr Tod, at the British Linen-office, Canongate. A Bond of the following Tenor, blank in the Day of the Month, was likewise delivered to the said Mr Tod. “ Know all Men by these Presents, me Mr William Sloan, Minister of the Gospel at Dunscore; Whereas Anne Neilson, eldest lawful Daughter of the deceased John Nielson of Corsock, and I, were privately married, upon the Day of in the Year and that I being then in Expectation of C ‘ ‘ being being admitted a Minister of the Kirk of Scotland, and of being provided to a Parish, it was judged proper, that we should keep our Marriage a Secret, as the divulging of it, by reason of its being clandestine and irregular, would have been a means of debarring me from being ad­ mitted a Minister of the Kirk of Scotland; and whereas it is still necessary, that our said Marriage be kept secret, to prevent a Deposition, which might probably follow the di­ vulging of it, until the five Years be expired from the Time of our Marriage; after which Time, by the Laws of the Kirk no Inquiry can be made, or Censure follow up­ on i t; and whereas the said Anne Nielson my Spouse, and her Friends and Relations, are anxious, in the mean time, that she should be secured in a Subsistence, both during the Time we must live separate, for answering the Purpo- ses before mentioned, and also during her Life, in case of my Death; which being very reasonable, therefore I bind and oblige me, my Heirs, Executors, and Successors, to content and pay to Richard Nielson, Linen-manufacturer in the Canongate of Edinburgh, Brother-german to the said Anne Nielson my Spouse, and to William Tod, Manager of the British Linen-company, her u ncle, or to any one of them, as Trustees for my said Spouse, and for her Use and Behoof, and to be applied by them towards her Sub­ sistence, the Sum of L 5 Sterling Money yearly, from the Day and Date hereof to the 1st Day of March 1757; and that at two Terms in the Year, Whitsunday and Martinmas, by equal Portions, beginning the first Term’s Payment at Martinmas next, and so forth thereafter, at the Terms, and by equal Portions, as aforesaid, during the foresaid Space, with a fifth Part of each t erm’s Payment of liqui­ date Penalty, in cafe of Failzie: As also to content and pay to the said Richard Nielson and William Tod, as Tru­ stees, for the Use and Behoof, and for the Purposes afore- said, the Sum of L. 30 Sterling Money yearly, from and “ after after the said 1ft Day of March 1757, and ay and while I 0 shall from that Period publicly own and acknowledge the said Anne Nielson as my lawful Wife, and adhere to and live with her as such accordingly; and that half-yearly, at the two foresaid Terms, Whitsunday and Martinmas, by equal Portions, with a fifth Part more of each Term’s Annuity of liquidate Penalty, in cafe of Failzie, toties quoties: And I do simpliciter renounce and discharge my jus mariti, and Right of Administration of the foresaid Provisions made by me in favour of my said Spouse, and the Trustees for her before mentioned. And further, in case of my Death. I do bind and oblig e me, and my foresaids, to content and pay to the said Anne Nielson, my Spouse, in the Event of her surviving me, the Sum of L. 10 Sterling of yearly Annuity during the Life of Janet Rae, Relict of John Nielson of Corsock, her Mother, and the Sum of L. 11 Ster­ ling yearly after the Death of the said Janet Rae her Mo­ ther. in regard she will then have Right to the Interest of L. 180 Sterling of Portion due to her, which is liferented by her said Mother; and that during all the Days of her Lifetime after my Decease, at two Terms in the Year, Whitsunday and Martinmas, by equal Portions,” &c The chief Purpose of said Letter seems to have been, to assure Mr Tod of the Regard he had for his Wife, and his Resolutions to take her home, as soon as his Situation would admit of it, and the Apprehension of Church censure was o- ver. In that View it was natural for him to say, that he had done all in his Power for his Wife, and maintained her according to his Abilities. And the obvious Intention of the Bond, was to settle upon her a certain Provision from the 1757, when his Affairs might be in a more settled State, in case the Obstacles to their living together should still con­ tinue, the Danger of Church censure, or of his being pre­ vented from getting a better Living: For at that Time he was of Opinion the former prescribed; and there was a great Probability Probability of his being then better provided, by the Interest of her Friends. It would appear, however, that there remained other Ob- st a cles to his taking the Petitioner home. His Living, though a good one, had not a proper Manse to lodge a Fami­ ly: And perhaps he was undeceived as to his Ideas of the Time when Church-censure prescribed: And he had still the Mo- tive, arising from the Hopes of being better provided. The Petitioner was therefore obliged, much contrary to her own Inclinations, to lead an uncomfortable Life, separate from her Husband. and to support the Character of a young Lady, expensive. in itself, and, of course, burdensome to her Friends, whose Delicacy would not permit them to demand from Mr Sloan the Sums they had expended for her Behoof, in hopes that his Situation might be better, and, secure from the Ideas of his Circumstances, that he was at any time suffici ently able to pay them. Unfortunately Mr Sloan was suddenly cut off, in April 1765: And the Petitioner, to vindicate her Character, as the Marriage had taken Air, as well as do Justice to her Friends, and ascertain her legal Rights, brought a Process before the Commissaries of Edinburgh,in which she clearly established her Marriage. At this Time it was not believed, nor from the Circum- stances of Mr Sloans Debts, to be afterwards noticed, could it be known, that he had any Creditors at a ll: And it was but just, that the Claim of distant Heirs should give way to the onerous Provisions in favour of a Wife; and that the Petitioners, who were, by written Obligation, constituted his just and lawful Creditors, and, upon the Faith of these, had advanced considerable Sums, should be reimbursed of what they had so advanced. The present Action was therefore instituted, in which she concluded for Payment of L. 215: 14: 1 being composed of Ad­ vances actually made by the Petitioner Richard Nielson for ■": • her her Behoof, and of L. 30 of Aliment, till the Day of March 1757. From which Period she likewise concluded for L. 30 yearly, till Mr Sloan's Death, with Interest. Her other Claims consi sted of the ordinary ones of Aliment, from the Time of her Husband’s Decease till the Term of Whitsunday thereafter, and for Mournings. And it is here material to observe, that the Libel, by Mi- stake, deduced from the first-mentioned gross Sum, the Sum of L. 13. 5 s. as the Sum stipulated in the Bond towards her Maintenance from March 1754 to March 1757, which, in place of being deduced, ought to have been included therein, as the Petitioners do positively aver, that no Part of it was ever paid to them. This Mistake was observed at the very first pleading of the Cause before the Lord Ordinary, as is instructed by the Mi­ nutes in Process, p. 2. wherein it is said, by the Counsel who opened her Cause, that the said Richard Nielson, in conse- quence of the above-mentioned Letter, did furnish the said Anne Niels on with sundry Articles, which, with her Board from the 1st of March 1752, to the 1st of March 1757, amounts to L. 215: 14: 1 Sterling from which he is willing to allow the L. 5 Sterling yearly, w hen paid, during that Period, in Terms of the Bond, being L. 13, 15s Sterling. And her other Counsel, in Reply, is represented as setting forth, that the Pursuers did not admit, that said Sum was paid. It is believed too, though at this Distance of Time it cannot be with Certainty affirmed, that an Amendment of the Libel was then craved as to this Particular: But it must be owned, that this is not taken down in the Minutes which seem to have been made up by the Clerks, whofe Notice this may have escaped. But it is certain, that in the very first Repre- sentation given in to the Lord Ordinary, this Mistake was endeavoured to be rectified. The Words of said Representa- tion, p. 9. are, “ In these Conclusions- there is a small Error committed for the L. 5 per anum, which is craved to be deduced from the Sum of L. 215: 14: 1, but ought rather to D be be craved to be found included therein: For your Lordship will observe, that this was a Sum which Mr Sloan became bound to pay annually towards his Wife’s Maintenance by the Bond: And as both the Sums contained in the Bond, and the Sums expended by the Representer Richard Nielson, for Behoof of his Sister, are pursued for; so this L. 5 ought to be included in the annual Charge of Maintenance, and not deduced therefrom.’’ And in the Prayer thereof, an Amendment of the Libel is expressly craved. This Point, as well as the Interest and Expence, is still kept open to the Lord Ordinary’s Review. The Petitioners have only further to inform the Court, that with regard to the Debts which are brought to compete with them, there is only one Debt prior to the Bond in question in 1756, for the trifling Sum of L. 1: 13: 4, one in 1758 for L. 1: 1 1: 6, one in 1759 for L. 25; the rest are all very late Contractions; the whole together amounting, of Principal to L. EPI O NO IFM Interest thereon at Candlemass 1766 L. 28: 2: 6, making together L. 294: 13: 2; besides L. 72: 10: 4, pretended to be privileged Debts; and L. 40, due to the Widows Fund. And this Sum is due to thirty-five different Creditors, fourteen of the Debts are due by open Account; and the Executors, who are stated as Creditors in L. 18, are, at an Average, among the most considerable. The Petitioners having thus stated the Facts, shall be very short upon the Arguments in point of Law. They did, and do acquiesce in the Lord Ordinary’s Interlocutor, restricting the Sums advanced for the first Year to L. 20, however hard upon them; and however necessary it was for Mrs Sloan's outsetting: They do also acquiesce in his Lordship’s Judg­ ment, rest ricting the Petitioner's Aliment to the 1757 to L. 12, in regard the Obligation till that Period was in some Degree indefinite: And though they do apprehend that the posterior Obligation from that Date for L. 30 was suff icient Evidence that this Sum was absolutely insuff icient for Mrs:1 Sloan's Sloan's Support at Edinburgh, in the Character she was then obliged to assume; and that People who know the Expence of this must be persuaded it has cost more; yet, to avoid the Appearance of obstinate Litigation, they were willing to put up with this Loss. But your Lordships above-recited Interlocutor cuts them off indiscriminately from all Claims preceding March 1757, and restricts the L. 30 allowed for her Maintenance to that Period to L. 10, in a Question with her Husband’s Creditors. This, with great Deference, is a Hardship, against which the Petitioners must beg Leave to reclaim. The Petitioner Rich­ ard N ielson, at whose Expence Mrs Sloan has been maintain­ ed, and who has actually advanced Money to her, upon the Faith of said Obligations, must be a great Loser by this. And he humbly apprehends, that the Defenders Arguments to deprive him of these Sums, are altogether unavailable. Had the Petitioner Mrs Sloan stood in no Relation whatever to the deceased, it is apprehended, that Advances made in consequence of said Obligations must have been good; and in consequence of said Obligations, and of the Sums debur- sed, he became an onerous Creditor to the Defunct: And if so, it would be impossible even for prior onerous Creditors to reduce these Contractions upon the Statute 1621, far less could posterior Creditors quarrel them, the Smallness and Na­ ture of whose Debts render their Plea in no Shape favourable. And it is in vain for such Creditors to argue, that these Sums must be prefumed to be paid in 1754, when the Bond is said to have been granted. This is a Presumption which has no Foundation in Law, that the Petitioners know of, and is contradicted by the Circumstances of the Case, as well as by such Evidence as the Thing is capable o f; for your Lord- ships will observe, that the Receipts for the Money advanced are still existing, as well as the Accounts libelled on, which fell to be given up, if the Money had been reimbursed by Mr Sloan: And if there had been a total Clearance at the 1754 or 1757, the above recited obligatory Missive would. ■ either either have been given up or discharged; and such Dis- charge, as it would have been found amongst Mr Sloan's Pa­ pers, would now have been produced by his Executors. But should your Lordships consider these Obligations, and this Bond, in another Point of View, as postnuptial Settle­ ments, or Provisions in favour of a Wife, the Petitioners do, with the greatest Deference, argue there is neither any Ground for reducing them, at the Instance even of onerous Creditors. With regard to postnuptial Settlements to take place after a Husband’s Death, the Court has repeatedly found, that they were good against prior onerous Creditors, though the Granter was insolvent at the Time of granting them. This was decided so far back as the 19th June 1635, Walker contra *Polwart, where a Bond granted for this Purpose was sustain- ed, though the Husband was allowed to have been insolvent. And it appears from my Lord Dury, who reports this Case, that this Provision was considered by the Judges at that T ime, as “ a Debt owing to the Wife de jure nature, for her Maintenance and Living, which in its own Proportion is as favourable as the Creditors Debts.” The same was like- wise found the 11 th of January 1738, Robertson contra Handyside; and a similar Decision, repeated upon the 7th of February said Year, Sir Roderick Mackenzie of Scatwal contra Christian Monro. The Provision in question of L. 30 yearly, it is hoped, will appear to have been a proper one, considering the Cir- cumstances of the Case, which rendered it necessary for the Petitioner to live in a very expensive Way at Edinburgh; and surely, if a Person’s Creditors are to suffer by a Provision made to a Wife to take place after his Death, when he was insolvent at the Time of granting them, it is much more just, that posterior Creditors should allow a Defalcation of their Debts, on account of Provisions made during a Man’s Life, whilst he was unquestionably bound to cherish and maintain her; more especially, if it appear that said Credi­ tors tors Debts had no Existence at the Time these onerous Ob li gations were entered into. To establish a contrary Doctrine, would be, with great Deference, going contrary to the Analogy of Law observed in the above Decisions; and it would be in E fect finding, that a Wife must starve during her Husband’s Life, notwithstand- ing his onerous Obligation to the contrary, and Money ad­ vanced thereupon, though the must be supported after his Death. Provisions of this kind are indeed uncommon here, though they are well known in other Countries: But where they do occur, and where the Circumstances of the Case ren­ der them necessary, there does not, with Deference, occur any good Reason for refusing to give them Effect. The Mar­ riage is equally an onerous Cause before as after the Hus- band’s Death; and the natural Obligation upon him to main­ tain her, is at least as strong in the first, as in the last Case: The Wife therefore, or Persons who advance Money for her upon such Obligations, are equally onerous Creditors in both Cases; and consequently the Debts which they claim in vir­ tue of such Obligations cannot be reduced, even by prior Creditors, upon the Statute 1621, far less by posterior Credi­ tors, whose Debts are small and latent, as it will appear those of the competing Creditors are. And it is in vain to plead, that the posterior Contraction of Debts is a virtual Revoca­ tion of these Provisions, which ought to be considered as dona- tionis inter virum et uxorum. For, in the first place, from what is above said it must appear, that such Obligations are not at all of the Nature of a Donation. And, secondly, if such Debts should be considered as a virtual Revocation thereof, fourteen of them being open Accounts, every Meal that a Man eats, or every Coat he takes off, would fall to be consi ­ dered as a Revocation of a Provision to his Wife. It was argued indeed, that the Allowance of L. 30 after 1757, fell to be considered as a Penalty, to oblige the decea- E ' sed led Mr Sloan to cohabit with his Wife, and might therefore be restricted. But where is the Evidence of this? Had Pains and Penalties been necessary to have obliged Mr Sloan to comply with what was truly his own Inclination, much more powerful ones could have been used against him than any penal Sum. It is clear, that nothing prevented this at first but the Apprehension of Church-censure, the Fear of hurting his Promotion in the Church, and afterwards, as the Petitioner had Reason to believe, the Inconvenience of his Manse. He expressly assigns the first as his Reason for wishing to keep the Marriage private. And the anxious Re­ gret with which he does this in his Letter to Mr Tod, plain­ ly shows what a disagreeable Restraint these Apprehensions imposed upon him, and demonstrate how desirous he would otherwise have been to have lived in Family with his Wife. So that from thence there must arise satisfying Evidence that there was no Occasion for imposing any such Penalty upon him; and if so, none ought to be presumed to have been imposed. He was bound by every Tie of Affection to her as his Wife, of Gratitude, as provided by her Relations, and of Interest, as expecting their Support to maintain and support her as his W ife; and on that Account alone he set­ tled upon her a reasonable Provision, whilst the cruel Neces- sity of their Situation should oblige them to keep asunder; which Provision, it has already been stated, was no more than necessary to support her in the Character of Life she was obliged to assume, and which, as already observed, was at that Time no more than suited to his Circumstances, be­ ing then possessed of a very beneficial Charge, and enjoying a very considerable Patrimony. It is true he expected better Things, and perhaps he de- served them; the Expectation of this, as well as the Deli­ cacy of her Relations, prevented them from asking Payment for what they had advanced, or making a Clearance with him, when he was cut off by a sudden Death. But this Ac­ cident, cident, nor their own Delicacy, ought not to hinder them from receiving Payment of their just and onerous Debts, of which they solemnly affirm they never received a Farthing, and if necessary, will submit to any Expiscation the Court shall be pleased to appoint, for they do, and have all along averred, that the Deduction of L. £3, 5 s. crept into the Li­ bel by Mistake. But as this is still open before the Ordina­ ry, the Petitioners when they pray for an Affirmation of his Lordship’s Interlocutor in so far as for them, cannot crave an Amendment of his Interlocutor in that Particular. If they prevail in this Application, that will fall to be remitted to his Lordship’s further Consideration. The Petitioner Mrs Sloan has only a few Words to add as to her Allowance for Mournings. She was under a Neces- sity to take them off, as her doing otherwise might have been made an Argument against her Marriage, as the Privacy of it is used against her Claims. A Wife who is privately mar­ ried is as much bound to mourn for her Husband, as one whose Marriage is publicly known. She took them off bona fide to a much larger Extent than the Ordinary has allowed, which is offered to be proved. She has been denied any A- liment from her Husband’s Death till Whitsunday; she hopes, this Claim will not likewise be cut off. And upon the whole, the Petitioners, who fall to be con- sidered as onerous Creditors, with this Addition, that the Situation of Mrs Sloan has, without any Fault of hers, been remarkably unfortunate, humbly hope that your Lordships will affirm the Lord Ordinary’s Interlocutor in so far as fa­ vourable to them, which if it does not fully redress their Loss, will at least make up some Part of it, and render the hitherto joyless Days of one of them more comfortable, by the Reflection, that her unhappy Situation has not been at­ tended with so heavy a Loss to her Relations and Creditors. May it therefore please your Lords hips, to review and alter your Interlocutor, of Date the 2 1st of November last. 2do, To approve of the Lord Ordinary's above-recited Interlocutor, bearing Date the 26th of July 1766, in so far as it decides in the Petitioners favour; and t o remit to the Lord Ordi­ nary, to give Judgment as he shall s ee Cause, in the Points still kept open to his Lords hip's Review by the Petitioners Representation. According to Justice, &c. f A L E X. M U R R A Y.