Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ROBERT MACGILL, LORD FOORD.

The Viscount of Dudhope
v.
Cockburn

Date: 26 June 1649

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In the suspension raised by the Viscount of Dudhope against —— Cockburne, relict of umquhile David Scrimgear, his uncle, the reason, upon the question of paying 8000 merks, when other right of tocher should have been laid down, did not militate; because the charger offered to show that tocher employed; and, because the other right forenent it was also employed, did not charge for the same; but insisted for employing 22,000 merks, conditioned, in the former part of the contract, by the suspender his goodsir to the said umquhile David, and the heirs to be procreated betwixt him and the said —— Cockburn, charger. Whereto was opposed, a reason of compensation grounded upon a bond paid by the suspender his goodsir, for the said umquhile David, his son, as cautioner therein. Whereunto it was answered by the charger, That the payment of the said bond cannot compense; the suspender his goodsir having paid that sum long before the time of contracting the said marriage; and he, providing his second son that was to be honourably matched, and the heirs of the marriage, to a sufficient stock, did, as it were, tacite discharge the former debt; quasi nemo donet, nisi debito prius in rationem deducto, chiefly where the father contracts for his son with an honourable party.—Vide l. 26, procula ff. de presumpt. et ibi D. D.;— for, even back-bonds, given by bairns to their parents before the contract, or betwixt the contract and the marriage, are not fair nor honest; although the husband, induring the marriage, if he will debauch, may spend all that is provided for their children; yea, for the wife also, if she should condescend thereto, even in matter of heritage, let be money. Yet, if a stranger had been made assignee to this bond so paid, he might pursue the heirs of the marriage for payment of the same; and albeit the heir or executor representing the defunct, could scarcely make it a valid debt against the heirs of the marriage, (suppose, for the upholding of an old house,) the heirs being but lasses, and having, in that provision, more than competency, yet a lawful creditor might seem to have more probable reason of action against the said heirs of the marriage, for payment of their father's debt. But nothing can be well sustained for the behoof of the said goodsir contractor. Annæus Robertus his pleidoier are cited anent the honesty of parties in contracting of marriage.

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