Subject_1 PERSONAL and TRANSMISSIBLE. Subject_2 SECT. III.
What Rights go to Assignees.
L West-Nisbet v. L Moriston.
Date: 27 March 1627 Case No. No 50.
A bond of annuity to a wife, granted by a third party, is not attachable by the husband's creditors. See No 44. p. 10365.
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West-Nisbet having arrested in Moriston's hands some yearly annuity, which, by decreet-arbitral, he was obliged to pay to the Laird of East-Nisbet's wife and bairns, for their maintenance and entertainment, and desiring the same to be made furthcoming to him, for satisfying of a debt addebted to him by the Laird of East-Nisbet, and which he had paid as cautioner for him, seeing the moneys addebted by Moriston, albeit appointed to be paid to East-Nisbet, his debtor's wife and bairns, yet the same ought to satisfy the husband's debts who was living, and who was dominus bonorum, and whose money the same properly was; and the adjection of the payment to be made to his wife and bairns, done to prejudge the creditors, ought not to be allowed in their defraud; and it is more agreeable to reason, that he and his wife and bairns should want, than that the creditors, who were likely to want in his default for his debt, should be so defrauded.—The Lords found, that these sums being ordained to be paid for the sustentation and entertainment of the wife and bairns by that decreet arbitral, which was not a decreet given by the Lords of Session, but by friends, yet it could not be arrested for the husband's debt, but the same ought to be paid and converted to their aliment, and the sustentation of their life, as was destinated in the said decreet.
Act. Nisbet.Alt. Mowat et Craig.Clerk, Hay.
Fol. Dic. v. 2. p. 76. Durie, p. 295.*** Spottiswood reports this case:
Cranston of Moriston being in possession of East-Nisbet's estate, as donatar to his liferent, by moyen of friends obliged himself to pay 2000 merks yearly to John Home of Renton, for the entertainment and aliment of the Lady East-Nisbet and her bairns. Renton having charged him for the Martinmas terms duty 1626, he suspended upon double poinding; alleging, That that sum was arrested in his hands by diverse of East-Nisbet's Creditors. Compeared West-Nisbet, and produced a decreet, and alleged he should be answered and obeyed, because it behoved to be reputed the Laird of East-Nisbet's gear, seeing, stante matrimonio, the wife and the husband could have no sundry sums. Answered by the charger, That the allegeance ought to be repelled, because the sum contained in the said contract could not be arrested by any for a debt owing to them by East-Nisbet elder, seeing it belonged not to him, nor was ordained to be paid to him or any in his name, but allenarly to Renton for the aliment and sustentation of the lady and her children during her husband's lifetime.—The Lords found, that the Lady should be preferred to any creditor, and that the said sum could not be arrested for her huband's debt, as had been found before in favour of the Lady Airth.
