Scottish Court of Session Decisions

The late Robert Jamieson, W.S., possessed a liferent right of a strictly alimentary nature, to the dividends of certain royal bank-stock. He became indebted to Greig and Morton, W.S., his law-agents, for some law-accounts, in particular one amounting to £40, which was incurred in defending Jamieson's right to the alimentary fund, and another of £38, incurred in defending against an action for alleged debt, which was brought against him by a Mrs Hall. The debt was not connected with the alimentary fund. The whole accounts amounted to £93. Jamieson was also indebted, in a much larger sum, to Miss Catharine Christie of Montrose; this debt was not of an alimentary nature, and was contracted before Jamieson acquired the alimentary fund. Jamieson owed other debts and died insolvent. The cashier of the Royal Bank raised a multiplepoinding for the purpose of ascertaining the preference of the respective creditors as to the bank-dividends which had fallen due in Jamieson's lifetime, but remained unuplifted at his death. Several questions then arose which have been already reported. ¹ In the competition between Greig and Morton, and Miss Christie, the Lord Ordinary, after finding that the fund in medio was liable in the first instance to pay the funeral expenses of the deceased, so far as these were reasonable and proper; farther found “that the debt claimed on by Messrs Greig and Morton, consisting of business accounts contracted by the late Mr Jamieson's agents, for the enforcement or defence of his legal rights, are to be held as alimentary debts: That the debt of Miss Christie, the other claimant, is not a debt

_________________ Footnote _________________

¹ Ante, XV. 32, 41, and 697.

of that character, having been contracted before the alimentary right was constituted in favour of the late Robert Jamieson: Therefore, and in respect of the arrestments used by the said claimants, Greig and Morton, prefers them secundo loco (and after giving effect to the above finding as to the funeral expenses) on the fund in medio, to the extent of £93, 8s. 9d., with interest from the 23d day of August, 1832.” ^*

Miss Christie reclaimed, and the Court recalled the interlocutor and remitted to the Lord Ordinary to enquire what law-accounts could properly be considered alimentary. Under this remit, it was pleaded by Messrs Greig and Morton, that besides law-accounts incurred in defending the alimentary fund itself, any law-account incurred in defending the life of the party holding the alimentary fund, would also be of a strictly alimentary character. And so ought a law-account to be held, which was incurred in defending his liberty. But as the action by Mrs Hall was one in which, if she had succeeded, she might have imprisoned Jamieson, the expense of defending him was a debt of an alimentary nature. At least where there was no proper alimentary debt in competition, such law-account was preferable to an ordinary debt. Miss Christie answered, that, unless a law-account was incurred in defending the alimentary fund itself, or the life of the party, it was not properly an alimentary debt; and, although Mrs Hall, if successful, could have imprisoned Jamieson for payment, the same thing might result from every action for debt directed against him. So that every ordinary account for defending against an action must be held an alimentary debt, if the account for litigating with Mrs Hall was held so.

The Lord Ordinary “having reconsidered the accounts in terms of the remit—found that one of these accounts, amounting to £40, 12s. 2d. sterling, consists of the expenses incurred by the late Mr Jamieson to the said Greig and Morton, in defending the alimentary fund, and that the only other account now insisted on is that of £38, 3s. 9d., for defending Mr Jamieson against an action brought by Mrs Hall: That though these last proceedings were not directly connected with the alimentary fund, they do not appear, either from their object or amount, to exceed the ordinary expenditure in litigation to which a party in Mr Jamieson's circumstances may be unavoidably exposed: Therefore adhered to his interlocutor of the 11th of March, 1836, finding that these business accounts are to be

_________________ Footnote _________________

^* “The claim of Greig and Morton is peculiarly circumstanced, as the debt was contracted after the constitution of the alimentary right, for purposes which would have supported it as a proper alimentary debt against the late Mr Jamieson himself, had he been claiming the dividends, agreeably to the principle recognized in the late case of Lord Buchan against his creditors; the Lord Ordinary has held it entitled to a preference over that due to Miss Christie, which bad been contracted before the alimentary right was constituted, and on which Miss Christie had received a dividend, arising in part, at least, out of the sale of that very life-rent, which Mr Jamieson's sister, Mrs Kinnear, purchased and re-conveyed to him, under the condition of its being alimentary.”

considered as alimentary debts, entitled to a preference on the alimentary fund over debts not possessing that character; and in the competition with Miss Christie, preferred the claimants Greig and Morton to the extent of these accordingly, with interest thereon from the 23d day of August, 1832; further preferred the said Greig and Morton to the extent of the sums of £19, 11s. 1d., and £1, 3, 7 1 2d. sterling, being the expenses of constituting the foresaid debt against the late Mr Jamieson, and with interest thereon also from the said 23d day of August, 1832; and decerned in the said preference, and for payment against the raiser of the multiplepoinding accordingly: and found the said claimants Messrs Greig and Morton entitled to the expenses out of the fund in medio from the date of the remit to the Lord Ordinary by the Court.” ^*

Miss Christie reclaimed.

_________________ Footnote _________________

^* “ Note.—The only object of declaring an allowance alimentary is to prevent the prospective alienation or incumbrance of it, and to secure the application of the annual payments to the annual exigencies of the annuitant. Accordingly, the nature and extent of the disabilities which it creates have been construed consistently with that object. The alimentary character has been extended to all articles of annual expenditure required for the comfort, or suitable to the situation of the party; and in regard to articles in which ready-money dealing is unusual and inconvenient, and in which an absolute disability to contract debt would operate to his advantage, that disability has been departed from: and by a farther and more questionable stretch of the same principle, even the arrears of alimentary debts have been sustained, unless in competition for any particular term's aliment, with the creditors for alimentary furnishings applicable to that particular term.

“The extent to which the application of these principles is earried, appears from one of the latest cases, in which the arrears of a gamekeeper's wages, and the advance of the price of a commission in the army for the annuitant's son, were sustained as alimentary debts.

“It would be difficult to deny the same privilege to the accounts claimed on here by Messrs Greig and Morton. The one account being contracted for the defence of the alimentary fund, is now admitted by the objectors to fall under the description of an alimentary debt. The only other, now insisted on, consists of the expenses of defending an action brought against the annuitant by a Mrs Hall, amounting to £38, 3s. 9d. In regard to it and the two other small accounts now given up, the Lord Ordinary certainly did not mean to hold, in pronouncing his former interlocutor, that every account for law expenses must be considered an alimentary debt. There may be so many litigations so rashly entered into, and so pertinaciously insisted on, as justly to fall under the description of extravagant expenditure, and against which it may be proper to protect the alimentary annuitant, and the fund. But, on the other hand, litigation to some extent is unfortunately one of the necessaries, or rather one of the necessary evils of life; and the ability to contract to that extent is just as requisite for the benefit of the annuitant, and as unobjectionable in principle, as the power to deal on credit with the butcher, at any rate with the apothecary. It would seem a strange classification to bestow the character and privilege of an alimentary debt on the arrears of a gamekeeper's wages, and to refuse them to the expenses of keeping the annuitant out of jail by defending an action.

“On these grounds, and considering, 1st, that the accounts do not seem to exceed in amount the ordinary expenditure of this kind to which a person in Mr Jamieson's situation might find it necessary to engage; and 2dly, that the claims do not here infringe on the claims of any other alimentary creditor—the Lord Ordinary continues of the opinion expressed in his former interlocutor.”