How far a yearly annuity settled by a man upon his wife, is understood to be alimentary, so as to exclude her creditors?
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The Earl and Countess of Caithness, anno 1741, entered into a contract of separation, in which the Earl became bound to pay to my Lady L. 1000 Scots of separate maintenance, with liberty to either to renounce the agreement. My Lady took the benefit of this privilege, and brought a process before the Court of Session for a suitable maintenance, which was ascertained to the sum of 200 Sterling yearly.
The Earl, in whose hands arrestments were laid by my Lady's creditors, raised a multiplepoinding; in which process my Lady appeared, and insisted, That the sum in controversy, decreed to her by the Court of Session, was in its nature alimentary, and not arrestable. This point being reported to the Court, it was the opinion of the President, That the annuity here, being modified by the Court as an aliment Lady Caithness, is not arrestable by her creditors. It was answered, That a man who makes a donation may adject what quality he pleases. If he allocate a yearly sum for aliment to any person the sum cannot be diverted to any other purpose, not even by the grantee, far less it attachable by the grantee's creditors. But it is not in the power of any man to withdraw his own property from his creditors. With respect to the present case, the sum decerned to Lady Caithness is not a donation. It is no more than a modification of the maintenance she was entitled to from the Earl. It is a yearly sum she is entitled to in her own right; and which, therefore, like any other article of her property, must subjected to the diligence of her creditors. The Lords have not declared this sum to be alimentary so as to be secure against creditors; and, had they done so, it would have been illegal; unless they themselves had been the donors. The present case is precisely similar to the terce, or to a jointure provided in a contract of marriage. These, no doubt, are alimentary: So are the proprietor's rents of land; but not in the sense of excluding creditors.
The Court took a middle course; which was, upon the acquiescence of the creditors, to sustain the arrestments to affect the half only of the annuity.
