Marriage being free, the Lords refused to sustain conditions and limitations regarding it, adjected to bonds of provision to daughters.
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Sir Thomas Burnet of Leyes (now deceast) gives a bond of 9000 merks to Margaret Burnet his daughter; of which bond, she and John Gordon of Brachlie her spouse, pursue exihibition and delivery against this Laird of Leyes, and Mr Robert Burnet advocate haver. It was alleged, That the bond is conditional, that she should marry with consent of the Laird of Leyes for the time; but so it is that she married without consent of Leyes, or any of her father's friends; 2. That by an agreement after the marriage in writ, her husband and Leyes condescended upon a lesser sum in satisfaction of the said bond, and so the bond is innovate and taken away. It was answered to the first, That matrimonia sunt libera, and such conditions should be holden pro non adjectis, as has been often found; and that the first bond is acknowledged by the second agreement. And as to the said agreement, and allegeance founded thereupon, it was answered, it was conditional, if the sum condescended on were punctually paid at Whitsunday 1661, the former bond should stand in force. It was replied, That the condition resolved only in a failzie, which the defender might yet purge, considering especially the time and scarcity of money, and that the said Margaret had so far miscarried against her friends; and the bond was never a delivered evident, but put in her uncle's hand to be furthcoming to her, if she should carry a-right.
The Lords found the second allegeance or reply relevant, and that the defender might yet purge. See Irritancy.
