BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
Mary Balcanquall v Lady Bavilaw, &c. Patrick Fermor's Creditors. [1698] 4 Brn 403 (18 February 1698)
URL: http://www.bailii.org/scot/cases/ScotCS/1698/Brn040403-0810.html Cite as:
[1698] 4 Brn 403
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Mary Balcanquall v. Lady Bavilaw, &c Patrick Fermor's Creditors.
Date: 18 February 1698
Click here to view a pdf copy of this documet : PDF Copy
In a competition between Mary Balcanquall, relict of Patrick Fermor, merchant in Edinburgh, and the Lady Bavilaw, and his other creditors, this point came to be controverted,—What preference a relict had in her husband's exeçutry, for her jointure and liferent provisions. The Commissaries had indeed preferred her to all the creditors in the confirmation of the testament; and it was alleged, it was the practice through all the Commissariots of the kingdom, and had grown up to a consuetude, till President Lockhart, in a case decided supra, 16th February 1687, between Keith of Lentush and Marjory Keith, found, that relicts had no such prerogative at all; and though the Roman law gave them a hypothec and prelation in bonis mariti ob dotem et donationem propter nuptias, yet it was a mistake to translate and adapt that to our law, who had no such custom as the Roman restitution of the tocher, either in specie, or as it was dos œstimata. And Groeneveg. de Leg. Abrogat. ad l. 30. D. de Jur. Dot. et tit. Instit. de Donat, and Gudelin, de Jure Novissimo, lib. 2. c. 8. show that the civil law is gone into desuetude as to this privilege of the wife's: and the Emperor Charles the Fifth abrogated the same.
It was contended for the widow,—That the general stream of decisions ran for her, for sixty years together, and was never controverted till the interlocutor in 1688; et una hirundo non facit ver: and the Lords had regard to this privilege in the practick marked at the 8th February 1662, Crawford against the Earl of Murray; and it is founded on the old law of the Majesty,—lib. 2. cap. 16. et Statut. Alex. II. cap. 22.
The Lords considering the weight of the case, and though there was but one decision in 1688, for the creditors against the widow's preference, yet that it seemed rational; they resolved to hear it in their own presence, ere they fixed it either way.
