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Scottish Court of Session Decisions >>
Alexander Aitken of Middlegrange, v James Goodlet of Abbotshaugh. [1706] Mor 2562 (16 January 1706)
URL: http://www.bailii.org/scot/cases/ScotCS/1706/Mor0602562-016.html Cite as:
[1706] Mor 2562
Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. II.
What understood to be a Liquid Claim.
Alexander Aitken of Middlegrange, v. James Goodlet of Abbotshaugh
Date: 16 January 1706 Case No. No 16.
Annualrent of a child's portion, compensated with her aliment while she lived in her father's family.
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In the action at the instance of Alexander Aitken of Middlegrange, against James Goodlet of Abbotshaugh, his wife's father, for the annualrent of her portion from the sixteenth year of her age till her death;
Alleged for the defender, Absolvitor from any annnalrent till his daughter's marriage; because, till then he had alimented her in familia, which compensed the annualrent for so long; and as to annualrents during the marriage, compensation by the expenses of her funeral debursed by the defender conform to a stated account.
Duplied for the pursuer, 1mo, Had the defender's daughter assigned the annualrents of her portion for an onerous cause, or her creditor arrested them, the defender could not have compensed upon the aliment not liquidated before the arrestment, or intimation of the assignation; therefore, a pari, the pursuer being assignee jure mariti, and his assignation intimated by the marriage, he cannot be put off with compensation upon a debt neither liquidated nor constituted to this day, especially such a general debt as aliment, which differs so vastly in different cases, as to the manner, quantity, and quality; 2do, If the compensation be sustained, the pursuer takes it off by recompensation upon the principal sum yet resting to his deceased wife; 3tio, No compensation can be obtruded to the pursuer upon his wife's funeral expenses, which must burden her executors to whom she has left means sufficient to defray the same.
Duplied for the defender, It is certain that the annualrent before the marriage was in place of the aliment; and the pursuer, by his jus mariti, could be in no better case than his wife, if she had pursued for annualrent after her age of sixteen.
The Lords found, That so long as the pursuer's wife was unmarried, and in familia with her father, her aliment compensed the annualrent; but that the funeral expenses affect her executors. See Husband and Wife.
