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Creditors of Angus M'Alister of Loup, v His Wife, Jean M'Donald. [1763] Mor 6600 (10 August 1763)
URL: http://www.bailii.org/scot/cases/ScotCS/1763/Mor1606600-013.html Cite as:
[1763] Mor 6600
Creditors of Angus M'Alister of Loup, v. His Wife, Jean M'Donald
Date: 10 August 1763 Case No. No 13.
A woman assigned to her relation, a married woman, a bond of L.100, secluding the husband's jut mariti. She afterwards assigned to her heir all her bonds, particularly the above-mentioned one, in lies of which she obliged her heir to pay to the former assignee L. 100, but forgot to exclude the jut mariti. Thought it was pleaded that the granter's intention was evident from the first deed, and that the reasons tor excluding the husband still subsisted, the jut mariti was found not excluded.
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Angus M'Alister of Loup, having denied his marriage with Jean M'Donald, she brought a declarator of marriage against him.
While this suit was in dependence, Margaret Drummond, a relation to Jean M'Donald, on the 29th January 1760, assigned to Jean a bond for L. 100, due by three tradesmen in Edinburgh, “secluding her husband's jus mariti, and all manner of right of administration, or other interest he could pretend thereto.”
Five months after, while the suit betwixt Mr M'Alister and his wife was still in dependence, Mrs Drummond executed a general settlement in favour of Mr Maxwell of Kirkconnel, and assigned to him all her bonds, and particularly this one; in lieu thereof, she, however, obliged him to pay L.100 to Mrs M'Alister, but forgot to seclude her husband's jus mariti.
Mrs M'Alister succeeded in her declarator of marriage, after which her husband's Creditors arrested the sum due by Kirkconnel to Mrs M'Alister, as in bonis of her husband.
Objected for Mrs M'Alister, The same reasons which induced Mrs Drummond to seclude Mr M'Alister's jus mariti at the date of her first deed, subsisted for secluding it at the date of the second. By the second deed, her intention was only to alter the security, but not to alter the object of her benefaction. She changed the debtor, and gave a more sponsible one, a landed gentleman; but she did not mean to change the creditor, or to put Mr M'Alister in place of his wife, whom he was at that very time renouncing.
‘The Lords preferred Mr M'Alister's creditors.’
For Creditors, Lockhart.For Mrs M'Alister, Jo. Dalrymple.
Fol. Dic. v. 3. p. 309. Fac. Col. No 119. 279.
