Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ALEXANDER BRUCE, ADVOCATE.

Dame Barbara Jaffrey
v.
Scot of Brotherton, and Others

Date: 3 July 1716

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By contract of marriage betwixt Sir John Falconer of Balmakelly and the said Dame Barbara Jaffrey, she is provided in the annualrent of 33,000 merks of jointure, which, in case of surviving children, is restricted to the annualrent of 20,000 merks ; but, some time after the marriage, there is a bond of provision granted to her by her said husband, whereby, in satisfaction of the said contract, she has disponed to her in liferent his lands of Galraw, with a salmon-fishing thereto belonging, upon which she is infeft, and which does exceed the said annualrent. After this, nevertheless, he infeft several of his creditors in the same subject, and then died, leaving children in life. And, in a competition betwixt the creditors and her, it was alleged for the creditors, That, quoad the excess, this was plainly a donation betwixt man and wife, and therefore revocable, and de facto revoked by posterior heritable bonds granted in favours of creditors.

Answered for the lady,—That though donations be prohibited, and are revocable, yet nothing hinders a husband and wife to enter into a reasonable transaction such as this was; for the restriction to the annualrent of 20,000 merks was not pure and simple, but only in a certain event, viz. if no children survived the husband, which was a hazard; and therefore they might lawfully transact in such an event. And certainly a periculi pretium is always allowed in such cases; and since, in one event, viz. the non-existence of children at Sir John's death, she would have had access to the annualrent of the whole 33,000 merks, it was nowise illegal to make a bargain in relation to that event.

The Lords superseded to determine whether it was a donation or not; but remitted to an Ordinary to hear parties further on that point: only, in the mean time, they continued the lady's possession, aye and while such restriction be found; and allowed decreet to go out against Brotherton, tacksman of the said salmonshing, for bygones, and even in time coming, aye and while the restriction be found; to be extracted with this quality, that, if the liferent shall be restricted to the annualrent of the 20,000 merks, this decreet shall cease from thenceforth.

Act. Horn. Alt. Jo. Ogilvie. Roberton Clerk.

Vol. II. No. 9. page 13.