Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Date: 20 January 1672
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A certain woman pursuing the heir of the granter, for payment of a sum contained in a bond, it was alleged, She could not seek implement of the bond, because it was sub hac conditione, si ejus consensum in nuptiis adhibuerit, which she did not. To this it was answered, That matrimonia debent esse libera, that clauses restricting the liberty of marriage are reprobated as unhonest, that habentur pro nullis seu non adjectis, and notwithstanding thereof the thing is due; that though she has not married with his consent, yet she has not married personæ turpi but honourably et sine desparagio, which must be reputed an implement of the condition per æquipollens. replied, Clauses prohibiting marriage simpliciter are rejected, but not such as circumscribe it within such and such bounds; that such conditions cannot be fulfilled otherways than in forma specifica; that Craig allows of such conditions, page 161. ibique ll. ac Doctores citati.
They were to have the Lords' answer, whether or no she could acclaim any benefit by the bond whereof she had forefaulted the express condition. L. 134, in principio, D. de V. obligationibus, L. 2. C. de inutilibus stipulationibus. Vide infra, No. 394, capit. 20. extra, de sponsalibus. Vide Dury, 16th December 1629, Home against Tenants. Perezius ad tit. C. de donationibus quæ sub modo, &c. Num. 4.
