Scottish Court of Session Decisions

Subject_1 HERITABLE AND MOVEABLE.

Jean and Margaret Gray
v.
Dunlop

1739, Feb. 23.
Case No. No. 9.

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The question was, Whether a liferent annuity bearing annualrent by paction from the several terms of payment fell under the jus mariti? We were unanimous that it did as to all terms that fell within the marriage, because suppose the clause of annualrent made the annuities heritable, yet before the term of payment, from which alone they carried annualrent, they behoved to be moveable, and all the question was as to bygone annuities before marriage, and which were bearing annualrent before the marriage. Royston, Arniston, Drummore, &c. thought them heritable because of the words of the act 1661, but others of us inter quos ego thought that act did not concern the case, which indeed made some debts moveable quoad executors, that were before heritable, but made no debts heritable that were before moveable; that therefore the question was, Whether such annuities, tack-duties, or other annual prestations, having clauses of annualrent adjected, were heritable before 1641;—and we thought that these were in the construction of law fructus and not feuda pecuniæ, and therefore moveable; and accordingly it was so decided, but by a very narrow majority.