Scottish Court of Session Decisions

Subject_1 PERSONAL and TRANSMISSIBLE.
Subject_2 SECT. III.

What Rights go to Assignees.

Mr William Irving, Minister of the Gospel,
v.
Patrick Crawford, Merchant in Edinburgh

Date: 22 June 1705
Case No. No 74.

A debt payable to one by a decree-arbitral, arrestable by a creditor to him, before the decree, altho' it was therein declared alimentary and not affectable by creditors.

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Thomas Gordon being debtor to the Earl of Cassillis, Mr William Irving, to whom the Earl was debtor, arrested first in the hands of Gordon, and obtained a decreet of forthcoming; then he arrested in Patrick Crawford's hands, as debtor to Thomas Gordon, and pursued a forthcoming, wherein the defender deponed, “That he was noways debtor to Thomas Gordon, but only in so far as by a decreet-arbitral he is decerned to pay to him and his wife in liferent for their aliment the annualrent of 3000 merks, and the fee to their children, which sums are declared not affectable by Thomas Gordon's creditors.”

Alleged for Crawford; That he could not be decerned against in the forthcoming, the annualrent of the 3000 merks due to Gordon being alimentary, and not affectable by his debts.

Replied for the pursuer; The 3000 merks being the proper effects of Thomas Gordon, neither he nor the arbiters could alter or invert the nature thereof by making it alimentary, or declaring it not to be subject to the diligence of his creditors; for no man needed to trouble himself about the payment of his debts, if he could declare his own estate free from diligence.

The Lords found, That after Gordon was debtor to the Earl of Cassillis, the decreet-arbitral could not prejudge the Earl; and consequently that the annualrent of the 3000 merks was arrestable.

Fol. Dic. v. 2. p. 77. Forbes, p. 10.