Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
James Rae v. Alexander Glasse of Sauchy
1673.
June.
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In the same month of June, there was an action of count and reckoning pursued by James Rae against Alexander Glasse of Sauchy; wherein Sauchy having produced a bond for 7000 merks, granted by the same James to Marion Rae his niece, now spouse to Sauchy, and to which he had right jure mariti;—Against which it was alleged, that the said bond could found no debt against him, because it bears this express quality,—“providing always the said Marion marry with my consent,” and which he never gave:—
Answered, the condition and quality was sufficiently purified and fulfilled; in so far as he was present at the marriage, and is a subscribing witness in the contract of marriage, and staid fourteen years in their house after the same.
Replied, where a consent is positively and expressly required to the constitution of an obligation, it must be specially adhibited, and must not be inferred upon presumptions, as that of being present, or a witness; that he never gave his consent to it, and, if he had, they would have taken him subscribing as consenter in the contract; that he never trysted nor communed, but was only witness therein tanquam quilibet e populo.
Duplied, that his simple presence (though he had not subscribed, as he has done) was sufficient in this case to import a consent, and it is enough he declared no dissent nor dissatisfaction; nor had he any reason, the parties being equal, and without any disparage, and with whom he staid after. And, which is sufficient in the marriage of children, that the father dis-assent not. L. 7, 12, et 13, D. de Sponsalibus.—L. T. C. De filiis-familias, et quemadmodum pro his pater teneatur, lib. 10.
The Lords found the quality satisfied by his presence and subscribing witness, and that the same was equivalent to a solemn and formal consent. Which seems agreeable to that practique marked by Dury at the 26th of July, 1631, Bishop of the Isles contra Shaw; but there is a contrary decision observed by him at the 19th and 28th of July, 1625, Walwood contra Tailzeor; and Mascardus, there cited. It might have been likewise urged for Sauchy, that all these clauses which restrict the liberty of marriage are reprobated in law. Which see debated supra, No. 306. [20th January, 1672.] See also No. 365, [10th July, 1672;] and the Informations of the cause beside me.
