Answers 1766

* „ # # » r “ ^ A N S W E R S..- * ^ ' ' * •*. ‘, t F O R ' ’ * V.., '. i J John Aitken and Robert Ramsay writers in Dumfries, for themselves, and as Trustees for the Creditors of Mr William ■ Sloan Minister of the Gospel at Dunscore; and also for John, Alexander, and William Austins, children of William A ustin in Scarr, and others, Executors qua nearest in kin of the said Mr William Sloan, 1 " ';: ' j T O T H E # P E T I T I O N of Mrs Anne Neilson relict of William Sloan late Minister of the Gospel at Dunscore, Richard Neilson of Corsack9, her brother, and William Tod merchant in London, her uncle* V1 Mr. William Sloan was possest of a fortune, in houses and ^ ^ others, to the value of about 800 L. sterling, which de volved to him upon the death of an uncle about the year 1752. Some time before this period, while attending his studies at the divinity hall, he happened to contract an intimacy with the petitioner Mrs Anne Neilson, and the intercourse betwixt them came to be talked of in a manner that did no honour to the cha­ racter of either of the parties. Whether this intercourse was conducted with sin cere and ho- nourable views upon Mr Sloan’s part, the respondents have had n o a cce ss to know; but whatever may be in that, it would appear apear that the Lady’s relations, and the sacred charafter which Mr. Sloanbe,hdiucmto come under obligations, which rather appear to have been the effect s of fear and Compul- sion, than of any sincere regard to the Lady upon his part. T he first obligation he came under was by a missive letter, ad- dressed to the petitioner Richard Neilson, the Lady’s brother, in the following words: “ Sir, by this missive, I oblige myself to repay you whatever you shall lay out for your sister Miss Anne Neilson, as to cloaths or tabling, or otherways. I am, Sir, yours, &c. (signed).- * *- ^ ' • * ‘ ^, F Addressed to Mr Richard Neilson merchant in Edinburgh.” As this letter had too much the appearance of a love intrigue, without any other foundation, so, of the same date, another let­ ter is wrote, and signed by Mr Sloan, of the following tenor: Sir, by this missive, I acknowledge myself married to Miss Ann Neilson, daughter to John Neilson late of Corsack; but as it is not prudent the discovery of it should be made, before I am in a settled way of life, I depend on your friendship, that it shall be a secret till that time. I am, Sir, your most humble servant, (signed).-* *-^ ' • *‘^, F Addressed to Mr Rich- “ ard Neilson merchant in Edinburgh.” Soon after this Mr Sloan was settled minister at Dunscore, a small charge, not exceeding- ‘ ‘ ‘ merks of stipend; and as Mr Sloan, before this settlement, was apprehensive of the prejudice that might arise to his character, if any thing improper in his conduct should be laid to his charge, so the hazard became the more alarming when he was settled as a minister. The friends of the Lady do accordingly appear to have laid hold of this op­ portunity. Mr William Tod, one of the petitioners, the Lady’s uncle, obtained from Mr Sloan, a letter of the following tenor: Sir, As my marriage with your niece has caused you interest- yourself in her behalf, I must own myself greatly obliged to you for the moderate and prudent measures which, at my de- sire, you have agreed should be followed. My character, as a clergyman, makes a private or clandestine marriage fatal; and as, before I was ordained a minister, it was absolutely ne- cessary to keep our marriage a secret, otherways 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 The same law, which would have prevented me from getting a ministerial character, would deprive me of it, after it is go t; and I should in all human probability be deposed, was our mar­ riage now to be known: But, as no offences of that kind can be enquired into after the elapse of five years, it will not be neces- sary that this marriage be kept a secret any longer than for three years; and as l have hitherto maintained my wife in the best manner my abilities would allow, I am still willing to do so according to the terms in the bond, till such time as we can acknowledge our marriage publicly, and have the comfort of living together. It is her interest as well as mine, that this plan be followed out; and, as you seem to be convinced of it, I hope you will be able to persuade her and her other friends to keep the se­ cret for some time. It- has some how taken a little air, which we must both concur to discredit, so as an enquiry be not set on foot by the presbytery; but, in case such an enquiry should be made, whatever she or any of her friends may be obliged to say for that purpose, I do solemnly declare, shall have no real bad effect against her; and, for that purpose, I am will­ ing to do any thing, o r come under any engagements that can be devised. God forbid I could be capable of making a bad life of it, if she should in the mean time be obliged to re- fuse our marriage; and therefore I am most willing in all e- vents to preserve both her honour and comfortable living. I shall give you an obligation to pay you a reasonable sum for her ali­ ment during the three years we must necessarily k e e p asunder, and to pay any sum thereafter you think proper, till I publicly acknowledge her and l ive with her as my wife; and I shall also make a provision to her in case of my death. I hope these things done on my side will enable you to persuade Lady Corsack her mother, and Mr Neilson 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 servant, (signed) William Sloan. Addressed to Mr William Tod, at the British-Linen-Office, Canongat e.. And, upon the day of 1 754, Mr. Sloan grant- ed a bond of the following tenor: “ Know all men by these pre- sents, me Mr William Sloan, ministe r-o f the gospel at Dun--s core, score: whereas Anne Neilson, eldest lawful daughter of the deceast John Neilson of Corsack, and I were privately married upon the day of, the year; and that I be­ ing then in expectation of being admitted a minister of the kirk of Scotland, and o f being provided to a parish, it was judged proper that we should keep our marriage secret, as the divulging of it, by reason of its being clandestine and ir­ regular, would have been a means of debarring me from be­ ing 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 divulging of it, until the five years be expired from the time of our marriage, after which time, by the laws of the kirk, no enquiry can be made, nor censure follow upon it. And whereas the said Anne Neilson my spouse, and her friends and relations are anxious in the mean time that she should be secured in a sub- sistence, both during the time we should live separate, for an- swering the purposes 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 Neilson linen- manufacturer in the Canongate, Edinburgh, brother-ger­ man to the said Anne Neilson my spouse, and to William Tod manager of the British linen-company, her uncle, 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- sist ence, the sum of L. 5 Sterling money yearly, from the day and date thereof, to the first day of March in the year 1757, and that at two terms in the year, Whitsunday and Martin­ mas, by equal portions, beginning the full 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 term’s payment of liquidate penalty in case of failzie; as also to content and pay to the said Richard Neilson and William Tod, as trustees, for the use and be­ hoof, and for the purposes aforesaid, the sum of L. 30 Ster­ ling money yearly, from and after the first day of March 1757, and ay and while I shall from that period publickly own and acknowledge the said Anne Neilson as my lawful wife, and W * ^. « “ adhere adhere to 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 annui­ ty of liquidate penalty in case of failzie toties quoties: And I do simpliciter renounce and discharge any 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 oblige me and my foresaids, to content and pay to the said Anne Neil- lon my spouse, in the event of her surviving me, the sum of L. 20 Sterling of yearly annuity, during the life of Janet Rae relict of John Neilson of Corsack her mother, and the sum of L. 11 Sterling yearly after the death of the said Janet Rae her mother, in regard she will have then right to the interest of L. 1 80 Sterling of portion due to her, which is liferented by her said mother, and that during all the days of her life­ time after my decease, at two terms in the year, Whitsunday and Martinmas, by equal portions.; Mr Sloan lived for eleven years after the date of this bond, having died of a fever in April 1765, but, during all that period, they did not cohabite together as man and wife, their marriage was never publickly known, nor did she ever assume the name or character of his wife. However, after his death, she thought fit to bring a declarator of her marriage before the Commissaries o f Edinburgh, and having met with no opposition, she pre­ vailed in her declarator accordingly; and in consequence thereof, as the respondents are informed, she is classed upon the widows fund for an annuity of L. 20 Sterling yearly. Upon Mr Sloan’s death, the respondents John, Alexander, and William Austines procured themselves decerned and con­ firmed executors qua nearest in kin to Mr Sloan their uncle; and thereafter an action was brought before your Lordships, at the instance of the petitioners, against the executors, as re- presenting the said Mr William Sloan, libelling upon the misives and bond above narrated, and concluding, That the respon­ dents, as executors of Mr William Sloan, ought to be decerned to make payment to the petitioners, in manner following, viz. to the said Richard Neilson, of the sum of L. 215: 14: 1 Sterling, 1^ advanced advanced by him to and for the other petitioner Anne Neilson, from the 1st March 1752 years to the said 1st day of March I 757, in virtue of the missive letter above narrated, and of the annualrent thereof, from and since and in time coming, till payment, with one fifth part more, as the proportion effeiring thereto of the expences of this process, and extracting decreet hereon to follow, “ deducing therefrom the foresaid sum of L. 5 Sterling yearly from the said 4th day of June 1754, before which period, it appears by the letter above mentioned of that date, the said bond was granted, t o the said 1st day of March 1757, extending to L. 13, 15 s. Sterling, as being only towards, or part payment of the said Anne Neilson' s subsistence. ” 2 do, To make payment to the said trustees, or to the said Anne Neilson herself, of L. 30 yearly, from 1st June 1757 to 7th April 1765, when Mr Sloan died,’ with L. 45 Sterling of penalty incurred through failzie. 3tio To make payment of the foresaid annuity of L. 20 Sterling, from and since 7th April 1765, during her mother’s life, and thereafter, of L. 11 Sterling yearly, in terms of the foresaid bond, with a fifth part of each half-year’s annuity of penalty, beginning the first term’s payment at Whitsunday 176 5; and to make payment of L. 1 o Sterling, as aliment from Mr Sloan’s death to Whitsunday 1765, with L. 20 Sterling, as the expence of mournings., <,; As the whole subjects left by Mr Sloan at his death, after pay­ ment of privileged debts, did only amount to L. 5 1 5, 15 s. Sterling; and as Mr Sloan was owing other debts at the time of his death, to the amount of L. 294 Sterling; and as the whole funds would fall greatly short of paying these debts, and the ex­ travagant claims mustered up by the widow, so the executors thought it their duty to bring the whole creditors into the field by a multiple-poinding., The foresaid action, at the instance of the petitioner, came in course before the Lord Kennet Ordinary, when compearance was made both for the executors and the creditors; and the Lord Ordinary, upon advising a minute of debate of this date, pronounced the following interlocutor: “ The Lord Ordinary having considered the above debate, with the accompt, mis-.. “ sives, sives, and bond libelled on, finds, That the deceased William Sloan’s letter to the pursuer Richard Neilson, obliging him* self 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, respect being had to Mr Sloan’s circumstances: Finds, That by the accompt libelled on, the pursuer Richard Neilson gave to his si ster, in the space of one year, from the 1 1 th June 1752 to the 1st June thereafter, the sum of L. 4 5: 3: 6, besides L. 28 Sterling, sta­ ted as paid to two milleners for her: finds, That the said sum was most extravagant for the circumstances of the parties, and therefore restrict s the same to L. 20 Sterling: Finds, That the said Richard Neilson 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 accompt, and to the sum of L. 11 Sterling paid to Murray and Muschet, per receipt; but finds him not intitled to the other sum of L. 8 Sterling, sta­ ted as paid to them, as no voucher is produced therefor: Finds the said pursuer is intitled to a reasonable board during the time he alimented his sister, in terms of the said misive; 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. 1 2 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 li­ bel, the sum of L. 13, 15 s. Sterling: Finds, That the whole sums due to the said Richard Neilson, deducing as aforesaid, amount to the sum of L. 6 8: 1 5: 7; for which sums decerns against the defenders: Finds, That the pursuer Anne Neilson, and the pursuers Richard Neilson 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 of March 1757 to the time of William Sloan’s death, which happened on the 7th April last, and to the sum of L. 20 Sterling yearly thereafter, during the said Anne Neilson’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, Whitsunday and Martinmas, equally; and decerns decerns against the defenders for the annuities already due, and in time coming, the terms of payment being first come and bygone: Finds the said Anne Neilson intitled to mournings, and modifies the same to L. 1 o Sterling, and de­ cerns against the defenders therefor; but finds the said Anne Neilson not intitled to the sums claimed, from William Sloan’s-death to the term of Whitsunday last, for aliment, in respect that the annuity settled on her by the said bond was sufficient for that purpose; and therefore assoilzes the defenders there­ from, superseding extract till the 15th January next.” Both parties represented against the foresaid interlocutor; and the Lord Ordinary, upon advising the representations, with answers, of this date, pronounced the following interlocu- «_ Cl, J tor: “ The Lord Ordinary having considered this representa- tion, with the answers thereto, finds, That, in summing of the articles found due to the pursuers by the interlocutor re- presented against, previous to the 1st March 1757, the sum is made to amount to L. 68: 15:7 Sterl. in place of L. 78: 15: 7 Sterl. But finds, That the pursuer Richard Neilson has not instructed, that the L. 11 Sterl. paid by him to Janet Muschet, was paid to her on account of Anne Neilson: And therefore, finds, That he cannot claim the same from the defenders; and therefore, that the sum of L. 78: 15: 7 ought to be re- st r icted to the sum of L. 67: 1 5: 7 Sterl. Finds, That, as the defenders are executors decerned and confirmed to the de- ceased Mr William Sloan, they are not personally liable to the pursuers for the sums found due; and therefore, only decerns against them cognitionis causa, et secundum vires inventarii; and, with these variations, adheres to the interlocutors re- presented against; and refuses the desire of both representa- • M *tions. The respondents reclaimed to your Lordships against the fore- said interlocutors; and, upon advising the petition, with an­ swers, your Lordships, of this date, pronounced the following in­ terlocutor: “ The Lords having advised this petition, with the an- swers thereto, they assoilzie from all the claims libelled preceding the 1st of March 1757: Find, That the pursuer cannot com pete with her husband’s onerous creditors, upon the alimen- “ tary • w tary bond for L. 30 Sterl. from the 1st of March 1757 to the time of her husband’s death; and therefore rest r icts the same to L. 10 Sterl. yearly, during that period: And find, That she is preferable to her husband’s nearest in kin for the re­ maining L. 20 Sterl. Find the pursuer is not intitled to mournings: And remit to the Lord Ordinary to proceed ac­ cordingly, and to hear parties procurators on the other points in the cause.” The petitioners have reclaimed to your Lordships. The peti­ tion is ordained to be seen and answered: And, in obedience thereto, these anlwers are humbly offered. The points established by your Lordships interlocutor are two: 1mo, Your Lordships have assoilzied from all claims libelled, pre­ ceding the 1st of March 1757. And 2do In a question with the creditors, your Lordships have restr icted the alimentary bond for L. 30 Sterl..to the sum of L. 10 Sterl. yearly.. With respect to the first of these, the respondents do, with submission, apprehend, that there is sufficient presumptive evi­ dence to satisfy your Lordships, that any claims she 0r the peti­ tioners might have had for aliment, or furnishings to her, have been satisfied and paid... Mr Sloan, though not in opulent circumstances, was possessed of some money besides his stipend. The petitioner, on the other hand, was in mean and low circumstances. Her father died bankrupt. A ranking and sale of his estate was brought before your Lordships. By her own showing, she had only a provision left her of L. 180, liferented by her mother, as it affected a sepa- rate estate of her own. And this action concludes for payment of aliment, furnishings, and other articles, from the very time of her supposed marriage, down to the time of Mr Sloan' s death, as if not a sixpence had been received from him in his lifetime, (L. 13; 15 s. admitted in the libel only excepted, and which they now want to retract.) T he claim itself is felo de fe. It is utterly incredible, that any person in the petitioner’s circum- stances, as already described, if she had a just claim, would have allowed the same to ly over for so great a number of years, with­ out recovering any part of it, when the debitor was able to pay. And more particularly, 2 do,'with respect to the claim for the period anterior to the date of the bond in the 1754;your Lord- C. ships ships will observe, that it is founded upon the foresaid letter from Mr Sloan to Mr Neilson in the 1 752, by which he obliges himself to repay what he should lay out upon his sister. Now, altho’ this letter was wrote in the view of Mr Neilson’s making advances to his si ster, yet it would appear from the after letter, likeways founded upon by the petitioners in this action, which was wrote by Mr Sloan in the 1754, that Anne Neilson had either been ali- mented by Mr. Sloan himself, or that Mr. Sloan had reimbursedMr. Neilson of what he had advanced on her account; fo r, in this letter, Mr Sloan writes, “ As I have hitherto maintained my wife in the best manner my abilities would allow, I am still willing to do so, according to the terms of the bond.” Here an explicit averment on the part of Mr Sloan, that he had hi- therto maintained his wife according to his abilities; and as this letter is addressed to one of the petitioners, acting under the cha-ract r of a trustee f r Mrs Sloan, a d as his letter is according- ly founded upon by the petitioners in support o f this action, it m u s t, in a q u e s t io n w i t h t h e m, be heldtobgood evidence of thefac. And indeed, when the parties are taking from Mr Sloan a for- mal bond for what was to be payable in time coming, it cannot be imagined, that Mr Neilson would not have insisted to settle accompts for what had been already advanced: And there is the greatest reason to believe, that this was the case, when no demand whatever appears to have been made by Mr Ne i l s o n f r o m M r. Sloan, during the eleven years that he lived after the date of this transaction; nor is it of any moment, that the now respondents are not able to produce formal vouchers of th e moneythawsgiv either to Mrs Sloan or her brother towards her aliment. It is not at all surprising, that Mr. Sloan should not have taken receipts from his own wife, when he gave her money towards her subsi stence, or even when he gave it to her brother for her behoof. A n d in d e e d t h e d im in u t io n o f M r. S l o a n ' s f u n d s, w h o m t h e p e t i t i o n e r s t h em s e lv e s a d m it t o h a v e b e e n a f r u g a l m a n, strong presumptive ev dence, that considerable sums must have gone for Mrs Sloan’s use in his own lifetime. And it is material to observe, that there is produced in process, a state of Mr. Sloan's funds, and of the debts which he owe d, h o lo g r a p h o f h im s e l f, m a d e u p up in the year 1764, in which there is not one farthing stated as due by him on account of the foresaid transactions. The petitioners say, that there is no foundation for the pre- sumption that there had been a total clearance in the 1754; for that the receipts for the money are still existing, as well as the ac- compts libelled on, which fell to be given up if the money had been reimbursed by Mr Sloan. In the first place, as has been already observed, it would be by no means surprising, tho’ Mr Sloan had paid money to his own wife, or even to her brother on her account, without taking any vouchers for it, or without any formal clearance or settlement of accompts betwixt them, 2do, A formal clearance and taking up of vouchers were unnecessary, when the foresaid letter in the 1754, and the bond granted relative thereto, did clearly imply that all former claims were adjusted: And 3t io T he only vouch­ ers in the hands of Mr Neilson are, a receipt granted to him by Janet Muschet, (with which it does not appear that Mrs Sloan had any concern, and which accordingly had been disallowed by the Lord Ordinary's interlocutor, and acquiesced in by the petition­ ers) and certain holograph receipts granted by Mrs Sloan to her brother for sums advanced by him to her, which receipts want witnesses, and which, therefore, for any thing that the respon­ dents know, might have been granted ex post facto when this ex­ traordinary process came to be thought of. The respondents therefore do humbly apprehend, that your Lordships can have no difficulty in still being of opinion, that no claim does ly for aliment or other furnishings, anterior to the date of the bond in the 1754. With respect to the period from June 1754 to March 1757, the respondents plea, and which was most just ly sustained by your Lordships, is, that the sum to be paid was settled by the foresaid transaction in the 1754, to be L. 5 Sterling yearly, and which sum the petitioners themselves have in their libel acknowledged to have been paid. The petitioners, on the other hand, contended, that L. 5 Ster­ ling, yearly, could never be understood to be in full of her ali­ ment; that the bond only bears, that this sum was to be applied by the trustees towards her subsistence, which could not be under- stood to be in full of it; and that Mr Sloan was still bound, by the the foresaid missives, to pay whatever should be reasonably ad­ vanced on Anne Neilson’s account. But, with all submission, the transaction cannot admit of any such construction. The obligation for payment of the L. 30 Sterling, from and after the 1757, bears to be granted for the same purposes that the obligation for the L. 5 Sterling was granted. The obligation in both cases is conceived in the same terms: “ He obliges himself to pay to Anne Neilson my spouse, and to William Tod manager of the British Linen-company, her uncle, 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 subsistence, the sum of L. 5 Sterling mo­ ney yearly, from the day and date hereof to the 1st day of March 1757; and that at two terms in the year, & c. As also, to content and pay to the said Richard Neilson and Wil­ liam Tod, as trustees, for the use and behoof, and for the purposes aforesaid, the sum of L. 30 Sterling money yearly, from and after the 1st day of March 1757, & c.” Thus your Lordships will perceive, that the obligation, in both cases, is conceived in the same terms, and granted for the precise same purposes; and as it is not disputed that the L. 30 Sterling yearly was to be in full of all that could be demanded, so upon no just construction can it be maintained, that the L. 5 Sterling was not likewise to be in full of all demands. And indeed when a transaction was entered into, settling the claims of the petitioner Anne Neilson by a formal and solemn deed, it is, with submission, absurd to suppose that the agree­ ment would not contain a stipulation of the full sum which he was to pay her during these years. It is impossible to assign a reason why he should have come under a specific obligation to pay a sum certain annually, and, at the same time, that over and above he should be left open to an indefinite arbitrary claim, upon the foresaid letters, for whatever Mr Neilson should think proper to advance to his sister. The letters founded upon by the petitioners, were only understood as an interim authority to Mr Neilson to advance what was necessary for his sister, until matters should be settled by a more formal transaction. But it must be understood, that, after the bond was granted, there was no further use for the letters; and that, accordingly, they were O # ' J to to have no further effect, but that matters would afterwards be regulated by the terms of the bond. This is clearly spoke out in the last letter, viz. that wrote in the 1754. In this letter he says, “ And as I have hitherto maintained my wife in the best manner my abilities would al­ low, I am still willing to do so, according to the terms in the bond, till such time as we can acknowledge our marriage publick- ly, &c.” Here the bond is referred to, in as many words as the rule by which he was to furnish his wife’s aliment; and there­ fore it can with no reason be maintained that Mr Neilson, in virtue of the letter which had been wrote two years before, was, over and above the sum in the bond, intitled to advance to his sister whatever he should judge reasonable and suitable. Neither does the transaction appear, in this view, to be at all unreasonable: For your Lordships will observe, that, by this trans­ action, Anne Neilson is giving away nothing to her supposed husband. She retains her own tocher; so that this L. 5 Sterling yearly was a clear addition to her former income. She had been in use to live in family with her mother; and, as the mar­ riage was to be kept a secret during these three years, the plan appears to have been, that she was to continue to live in family with her mother as formerly. The respondents therefore humbly apprehend, that your Lordships can have no difficulty in still being of opinion, that Mrs Sloan was intitled to no more than L. 5 Sterling yearly, during the foresaid period; and as the petitioners have made a most explicit acknowledgment in their libel, that the foresaid sum was paid, your Lordships therefore have most justly found, that no claim did ly anterior to the 1 st of March 1757• It is indeed true, that the petitioners wanted to retract this admision, when they saw what effect it would have upon their cause. It not only went the length of the L. 13, 15 s. for which they gave credit in their libel, but it tended strongly to establish the presumption that all anterior claims were satisfied; and therefore they applied to the Lord Ordinary to be allowed to amend their libel. But your Lordships will observe, that this is by no means in the case of an error in the forming of the libel, when there may be room for an amendment; but it is a plain admision D upon upon the part of the pursuers, that they had received satisfac- tion of part of their claim; and which your Lordships, especi- ally in a matter that appears so dark and mysterious, will not al­ low them to retract. The respondents, at the same time, do observe, that the petitioners preferred a representation against the Lord Ordinary’s interlocutor before the same became final, praying to be allowed to amend their libel with respect to the deduction of the L. 13, 15 s. This representation was ordained to be answered, so that this point is still entire before the Lord Ordinary. The second part of your Lordships interlocutor now reclaim­ ed against, finds that the pursuer cannot compete with her hus- band’s onerous creditors upon the alimentary bond for L. 30 Sterling, and therefore restrict s the same to L. 10 Sterling year­ ly; but at the same time finds that she is preferable to her hus- band’s nearest of kin for the remaining L.20. As therefore your Lordships interlocutor finds Mrs Sloan in- titled to the whole L. 30 Sterling yearly in a question with the nearest in kin, it is humbly submitted to your Lordships, if she has any just cause to complain, or can expect an alteration of the judgment. The respondents do in the first place humbly beg leave to main­ tain that this extraordinary claim now set up by the petitioners cannot be susta in ed in competition with the onerous creditors of the defunct. • ' The respondents do acknowledge that the provisions stipula- ted in favour of a wife, in a marriage contract, when the same are rational and suitable to the circumstances of parties, are ju stly considered as onerous, and that the wife will be intitled to com­ pete for such provisions with the onerous creditors of her hus- band; but they do humbly contend, and submit it to your Lord­ ships, that such a claim as the present ought not to be allowed to compete with the husband’s onerous creditors. Mr Sloan, during his lifetime, was never considered as married to this petitioner; she neither cohabited with him, nor was in a- ny respect acknowledged or habite and repute as his wife. On the contrary, the petitioner, in order to lay the foundation for the present claim, found it necessary to establish her marr i a ge after the death of her supposed husband, by a declarator before the the Consi storial court; and therefore, when the creditors contrac­ ted with Mr Sloan, upon the faith and belief that he was an un­ married person, that no wife had any claim against him for any provisions whatever, when the wife herself all along remained silent, and allowed the creditors to be lending their money to her supposed husband, without making any claim whatever a- gainst him; the respondents humbly apprehend, and submit it to your Lordships, that a wife, under these circrmstances, cannot be allowed, after her husband’s death, to set up a latent claim of this kind in prejudice of his ju st and lawful creditors. When a man is married, and is known to be such, it is the duty of cre­ ditors to inquire into the nature and extent of the provisions which he has settled upon his wife when they trust him with their money; but it would be extremely hard upon creditors if they were to be disappointed of their payment by latent claims of a supposed wife, who was not known under that character, nor laid any claim to him in the character of a husband till after his death. The petitioner, as an apology for her conduct, says, that she was led into this marriage, when she was only a girl of 17 years of age: But whatever excuse this may be for her entering into the marriage, it can never apologize or account for the strange- ness of her after-conduct. Her supposed husband lives for no less than 13 years thereafter, and, during the whole of that period, she is never known to be his wife, nor does she pretend to make any claim upon him under that character. Such a conduct, upon her part, must, with submission, afford a good personal exception against her in a question with onerous creditors. And therefore, with submission, the whole argument in the pe­ tition, and the decisions mentioned in support thereof, viz. that provisions in favours of wives have been sustained, even in a que­ stion with anterior onerous creditors, are all out of the pre- sent case, as the argument in the present case resolves into a per- sonal exception against the wife, in a question with her husband’s onerous creditors, viz. that she was never known to be his wife, nor, during the 13 years that the supposed marriage did subsist, did she ever make any claim upon him as his wife, but has found it necessary after his death to establish her marriage by a decla­ rator rator, in consequence of wh ich she is now drawing L. 20 Ster. yearly as a minister’s Widow. But 2do. your Lordships will observe, that the only question at present respects her aliment during the subsistence of the mar­ riage. Now, whatever force or effect may be given to provisions in a marriage-contract, whether antenuptial, or postnuptial, which are to take place after the husband’s death, even in a competition with creditors, yet the respondents do humbly ap­ prehend, that an obligation to aliment, during the subsi stence of the marriage, can never be founded upon in competition with the husband's onerous creditors. There is, no doubt, an obli­ gation lies upon the husband to aliment his wife; but if the hus­ band by misfortune, or otherwise, shall become insolvent, the obligation is at an end, nor can her claim of aliment be ever su- stained to the prejudice of creditors; every wise must in such case share the fate o f her husband. But 3tio, it is extremely evident that the foresaid obligation for L 30 Ster. yearly was not the result of Mr Sloan’s deliberate free will and choice, but the efe ct of fear, the result of the parti­ cular circumstances and situation in which he then stood, so that the bond itself is truly as exceptionable as if it had been granted in prison. It appears from the foresaid letter of the 4th June 1754, that he would have submitted to any conditions whatever ■ which Mr Sloan’s friends should think proper to impose upon him: He therein says, “ I shall give you an obligation to pay you a reasonable sum for her aliment, during the three years we must necessarily keep asunder, and to pay any sum thereafter you think proper till I publickly acknowledge it. It is from thence extremely evident, that when Mr Sloan grant­ ed this bond for L. 30 Ster. he was truly s ubmitting to a most exorbitant exaction upon the part of Mr Sloan’s friends, under the influence of the fear of which he was then seized, of being exposed both to the loss of character, and of the benefice which he then enjoyed: And when that is the case, the aliment thereby stipulated was certainly subject to your Lordships modification, and could not be sustained beyond what should be judged to be a reasonable aliment. It has been already observed, that Mrs Sloan gave nothing away to her husband, her own tocher is left intirely *entirely at her own dispofal, and under her own power, accord­ ingly, under these circumstances, L. 5 Ster. yearly was judged to be a reasonable sum during the three years, that in their appre- hension, they were obliged to live Separately; and therefore when, by your Lordships interlocutor, L. 10 Ster. is. given her, from the 1757 downwards, during her husband’s life, she ought to be sensible that full justice has been done her. The petitioners have been at great pains to magnify Mr Sloan’s circumstances, that he had in all about L. 1500 Ster. be- sides his benefice of L. 60 a year, and that therefore L. 30 Ster. yearly was no more than his circumstances could afford, and scarce able to answer the expensive manner in which a Lady of her rank and fashion was obliged to live in Edinburgh. But in the first place, Mr Sloan’s circumstances are greatly misrepresented, he was only possest of a stipend of about L. 50 yearly, as appears by the state of his own affairs referred to. He got nothing at all by his father; and the only subject he was ever possessed of, was about the value of L. 800 Sterling of houses in Glasgow, which he got by an uncle in the 1752, and even that sum was considerably diminished before the transaction in question was entered into. M r Sloan had contracted considerable debts before this succession opened to him, he had the expence of his education to defray, and was not settled in a benifice till about the 1754; and in fact it appears, that at the time of his death, after payment of his debts independent of the petitioner’s claims, there would only remain of free effects to the amount of L. 198 Sterling. And as to the expensive manner in which Mrs Sloan behoved to live, she was to live in no other manner than she had done formerly, she was not to assume a different character than what she did formerly; M r Sloan got nothing from her, she retained all the funds she formerly had, so that by your Lordships inter­ locutor she gets L. 10 more yearly for defraying her expences of living during the foresaid period, than she would have had it this strange marriage had not been entered into. As to her claim for mournings, the respondents apprehend that that claim cannot he sustained in prejudice of her husband's creditors; and 2do, as she was not possest of the character of his '1 wife, wife, during Mr Sloan’s lifetime, as they neither cohabited to­ gether, nor were reputed husband and wife, but that she found it necessary to bring a declarator of marriage after his death. There, with submision, seems to be no good reason for allow­ ing her any thing on account of mournings, the more especi- ally, that there is no evidence of her wearing mournings in the character of a widow. Upon the whole, this Lady enjoys an annuity of L. 20 Ster- ling yearly, as a ministe r ’s widow, which was purchased by Mr Sloan’s money. She retains her own fortune of L. 180 Sterling, There is already awarded to her by your Lordships interlocutor the sum of L. 81 Sterling. It is further subjudice of the Lord Ordinary, how far she is intitled to a further annuity of L. 20 Sterling during her mother’s life; and in place thereof, L. 1 1 Sterling after her death; and considering the strange and myste- rious conduct of this Lady, that during the space of 13 years, which, she says, the marriage subsisted, she never was reputed his wife, nor laid claim to him as her husband, but only esta- blishes a marriage after his death by a declarator, in order to carry of any small funds that he left behind him, and even to in- terfere with the payment of his just and lawful debts, the respon- dents are humbly perswaded that your Lordships will be of opi- nion, that this petitioner hath already got full justice, and that her petition ought to be refused. In respect whereof, &c. RO. M ‘ QU E E N