Assignation to Mails and Duties, with other Rights.
Cuninghame v. Tenants of Pomont
Date: 25 January 1662 Case No. No 54.
A woman assigned to her creditor, for his security, the arrears of rent which should be due by her tenants at her death. Having afterwards married, her husband claimed those rents jure mariti, which requires no intimation. Found, that being liable for his wife's debt, he could not with effect hold this plea.
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Sir James Cuninghame, servitor to the Lord Chancellor, having a bond of the late Duchess of Hamilton's, whereby she bound herself, her heirs and executors, to pay to him a sum at the first term of Whitsunday or Martinmas after her death; and, for his security, she did assign him to as much of the readiest of her rents pertaining, or that should pertain, to her at her decease, as should pay the samen. The said Sir James did intimate the assignation to her tenants about the time of her death, and called them, and Mr Dalmahoy her husband for his interest for payment. It was alleged for John Dalmahoy, That the obligation incipit ab hærede, and the sum of money payable, not till after her death, and consequently the rents which, the time of, and before her death, did belong to her husband jure mariti, and as dominus bonorum, cannot be made furthcoming for this debt. It was answered, That the obligation incipit a debitore, by which she has obliged herself, her heirs, and executors; and though the term had been 20 years after her death, yet cedit dies, it is a debt upon her a die obligations; and seeing the husband has no right to the wife's moveables or rents, but cum onere debitorum, the rents assigned (and which assignation the husband cannot quarrel, nor any deed lawfully made by the wife when she was soluta) ought to be made furthcoming to the pursuer.
