Subject_1 PERSONAL and TRANSMISSIBLE. Subject_2 SECT. III.
What Rights go to Assignees.
Dickson v. Braidfoot
Date: 3 February 1705 Case No. No 73.
A clause in a contract of marriage appropriating a jointure the wife had by a former marriage, to the maintenance of the family, found to exclude the husband's creditor, as the sum did not exceed a suitable aliment.
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Helen Braidfoot being first married to Menzies of Harperfield, and by him liferenting some lands, she marries Pitcairn of Pitlour to her second husband; and he being debtor to James Dickson, merchant in Edinburgh, in a certain sum, he arrests the rents of her jointure-lands, and pursues a forthcoming. Alleged, That she, foreseeing her husband to be in some debt, had provided against the same, by a clause in her contract of marriage with him, expressly allocating, destinating, and providing her jointure for the maintenance and subsistence of her family, and that it shall not be lawful for any of them to apply it to any other use, and so debarring her husband and his creditors from any intromission therewith to any other end, but constitutes it as a formal aliment. Answered, 1mo, In the case of the Lady Collington and Foulis of Ratho, Feb. 9. 1667, No 50. p. 5828, the jus mariti was found not renounceable, but like water cast on a higher ground, it still recurred and came back to the husband; see also 13th July 1678, Nicolson, No 52. p. 5834; and 10th January 1682, Telfer, No 53. p. 5836. 2do, Though it were renounceable, yet here it is not done, for this clause will not amount to a formal renunciation of the husband's jus mariti, which ought to be specifiee and in terminis done, and not inferred from remote consequences. 3tio, If this were allowed, every jointure and tocher shall be conceived by way of personal appropriation, which teaches bankrupts a way to defraud their creditors. Replied, Though of old the Lords thought the jus mariti so inherent ossibus mariti, that it could not be renounced, yet now they find it may be restricted, renounced, and regulated, per paeta dotalia; and the decisions cited point mainly at this, that a husband may not renounce his right of administration, headship, and management; for that were to unhusband himself, and renounce the privilege given him by the laws of both God and nature; and though law gives him right to all his wife's moveables, yet provisio hominis may take this away; yea Dirleton goes a greater length, for in his Dubia et Quæstiones, voce Aliment, he condemns the lawyers qui magno conatu et boatu would persuade judges, that wives' jointures are subject to the husbands creditors' diligence, though the jus mariti be renounced. The Lords, by plurality, found this clause of appropriation excluded the husband's creditors, and made it. so personal, that it was not affectable by arrestment, no more than a formally constitute aliment can be arrested, as, was found 9th July 1668, Bogg contra Davidson, No 62. p. 10380; but if it exceed the bounds of a suitable aliment, conform to the persons equality, (which is to be modified and determined by the Lords), then the excess may be affected by creditors.
Fol. Dic. v. 2. p. 77. Fountainhall, v. 2. p. 265.
