Supposing the intention of benefiting, in what cases Recompence due.
Trail of Sabae v. Moodie
Date: 29 November 1728 Case No. No 12.
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A wife having a liferent, constituted by locality, was induced to consent to several heritable debts, contracted by her husband, whereby her liferent, after his death, became in some measure ineffectual; upon this the question arose, Whether the ralict had recourse against her husband's heir, in so far as she was prejuged by yielding preference to her husband's creditors? That a recourse was competent, was argued from the nature of the transaction, that, by the wife's consent to the preference of the creditors, no simple or absolute gift was designed, either to the husband or his creditors; that nothing was intended further than to grant a security to the creditors; it was the same with respect to the husband, whether this was done, as in the present case, by consenting to a preference, or if she had directly impignorated her liferent-lands; and, therefore, from the nature of the thing, that recompense is due. The Lords found, That the liferentrix had a competent action against the heir of the husband for the damage she sustained for the want of her liferent, by consenting to the preferences of her husband's creditors. See No 9. p. 13405.
