Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Jack
v.
Jacks

Date: 5 January 1672

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In the cause mentioned betwixt these persons, debated the thirteenth day of December 1671, it being represented by bill, That the contract of marriage betwixt Jack and his second wife was lost; and desiring, that,—seeing the bond of provision to the bairns of the second marriage did bear to be “in satisfaction of all that the bairns could have by any contract betwixt their father and mother;” which did import that there was a contract of marriage; and this being a provision to children of a second marriage, who ordinarily have provisions by contract; and that it is a natural duty to provide children,—less solemnities in writs by a father, inter liberos, may suffice than the greatest requisites required by the Act of Parliament, of two notaries and four witnesses, there being here two notaries and three witnesses. The Lords did also take in consideration another reason of reduction of this bond, That it being clandestine, lying in the father's hand, who, by a public solemn contract of marriage, disponed his lands to his eldest son, and had reservations of liferents for himself and his wife, and a provision in favours of the eldest son of the second marriage; the said contract doth import a revocation of this bond of provision, which was in the father's custody, neither delivered nor registrate: and it would be an act of great fraud if the same, being latent, and not mentioned among the reservations in the son's contract of marriage with a stranger, for a tocher, that upon that latent bond the bairns of that marriage should be excluded or burdened; as was formerly found in the case of the Laird of Glencorss: so that, this bond being so little favourable, the nullity thereof ought not to be supplied. It was answered, That there were specialities in Glencorss his case, not quadrating with this; and that the onerosity of the son's contract could only be in quantum it were onerous: and that the presumed revocation of the father cannot be inferred by disponing to his son; because it is offered to be proven, that the father, long thereafter, upon his own expenses, caused deduce an apprising upon this same bond, which doth evidently both adminiculate the subscription, and take off the presumption of revocation. It was answered, That it does not import that the father revoked not this bond of provision by his son's contract, though thereafter he has caused apprise upon this bond; but only that he changed his mind, likely by insinuation of his second wife; which he could not do, after the contract, by the most solemn and direct writ under his hand; so that this bond, being both fraudulently latent and revoked, cannot be adminiculated by any thing posterior to the contract done by the father, in prejudice of the heir of the marriage. The Lords reduced the bond, unless the contract of marriage betwixt Jack and his second wife were produced, by which he was obliged to give such provisions.

Vol. II, Page 35.