Subject_1 PERSONAL and TRANSMISSIBLE. Subject_2 SECT. III.
What Rights go to Assignees.
L Kilcaldron v. L Balgillo.
Date: 8 March 1639 Case No. No 55.
A liferent annuity, granted by a first husband, found affectable by a second husband's creditors, though the children had no other means of subsistence, because it was not granted in the form of an alimentary provision.
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The L. Kilcaldron and his spouse having charged the L. Balgillo for payment of the annualrent of 4000 merks, addebted by him to Kilcaldron and his spouse, conform to the bond granted to her and her daughter, gotten betwixt her and Mr Henry Duncan, her first spouse, in fee, he suspends, alleging, That Kilcaldron spouse to the wife liferenter is owing to him for greater sums, and he is content to compense pro tanto. The charger answered, That compensation ought not to be admitted, in respect that the said annualrent charged for is destinated by the husband for the wife's aliment, and she has no other means to live by, but by this sum, neither of her own, nor by her present husband; and it were against conscience and justice, that her means should be taken from her, which she has from her prior husband, for payment of her second husband's debt, and that herself should starve for want of means of life. The Lords found the reason of compensation relevant, notwithstanding of the answer; and found, that the destination of the sum libelled, made by the husband to the wife for her aliment, could not hinder the compensation, seeing neither was this destination allowed by any Judge to be alimentary, nor found to be so; neither bore the bond, whereupon the charges were raised, that the sum was destinated, and payable for aliment.
Act. Barclay.Alt. Mowat.
Fol. Dic. v. 2. p. 76. Durie, p. 880.
