Subject_1 IMPLIED CONDITION. Subject_2 SECT. VIII.
Obligations, or Renunciations, granted upon an expectancy disappointed, or upon the supposition of a fund of payment of which the party is afterwards deprived.
Ballagane v. Sir John Arnot
Date: 5 December 1609 Case No. No 41.
A bond granted by an apparent heir, during his father's sickness, for composition of his marriage, was sustained, tho' the marriage fell not, the father having recovered.
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The Laird of Ballagane, younger, alleging, that he was charged by Sir John Arnot, under the pain of horning, to pay to him 1000 merks, suspended, affirming, that if he was anyways debtor, or had given his bond for that sum, it was for the composition of his marriage, by the which, he being informed that his father was deadly sick, he had dealt with the treasurer, who having set down that composition, took the pursuer's bond for that sum of 1000 merks as borrowed money, and his father being convalesced, whereby the ward fell not, the bond was given without any true or lawful cause, and so he might lawfully repeat the sum condictione, causa data causa non secuta, especially seeing the signature was not past the seals, and the treasurer could not be charged with it. To this it was answered, That the bond was pure and simple, making no relation to any casualty or composition; and as, if he had received the composition in actual payment, the same cannot be repeated, because the treasurer will give double gifts of escheat which cannot be profitable to both the donatars, and will give infeftments of recognition, gifts of non-entries, wards, marriages, liferents, and all other casualties periculo petentis, and will never be obliged to warrant them; and albeit they be found unprofitable, or founded upon false or null grounds, yet the composition is never repeated; so, in this case, he could not be compelled to discharge the obligations. In respect whereof, the letters were found orderly proceeded.
