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Scottish Court of Session Decisions >>
The Creditors of Andrew Scot, Competing. [1673] Mor 702 (27 July 1673)
URL: http://www.bailii.org/scot/cases/ScotCS/1673/Mor0200702-039.html Cite as:
[1673] Mor 702
Subject_1 ARRESTMENT. Subject_2 What Subjects Arrestable.
The Creditors of Andrew Scot, Competing
Date: 27 July 1673 Case No. No 39.
The annualrents arising from an heritable bond due to a wife, were arrested for debts due by the husband. The arrestment found to affect only bygones and the current term, as belonging to the husband jure mariti. See No 49. p. 713.
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In the Competition of the Creditors of Andrew Scot, anent an heritable sum belonging to Andrew Scot's wife, which the creditors had arrested in the hands of Bruce of Newton, and which the wife, with consent of the husband, had assigned thereafter to some of the creditors. It was alleged for the assignees, 1mo, That the arrestment for the husband's debt could operate nothing, but only for the annualrents preceding the arrestment, and the current term for which it was laid on; for the sum being heritable, did not belong to the husband jure mariti, but only to the wife, except as to the annualrents, so long as it was in the wife's person; but now the wife, with consent of the husband, having assigned the same, the assignees have the only right.—It was answered, That the jus mariti by the marriage, is a legal assignation to the annualrents during the marriage, so that the husband hath the only right to the annualrents during the marriage, and it is not in the wife's power to alter the same; and, as to his consent, which is the only right as to the annualrents, it is null, as done in fraudem creditorum, the arrester's having done diligence before the arrestment, especially seeing the husband at that time was bankrupt and broken, so that the assignation as to the husband being null, the creditors arrestment, for all subsequent terms, would be sufficient against the husband.
The Lords found, That the annualrent belonged to the husband jure mariti, during his wife's life and his together; and that the assignation made by him would be valid to exclude the arresters from any thing after the current term, unless he were instructed bankrupt, or that the assignation was contrary to the act of Parliament 1621.
