One having granted a bond to his niece, under condition, that she should marry with his consent; the clause was strictly interpreted, and it was found that his scribing witness to her contract of marriage did not import such a consent.
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James Rae having assigned to Alexander Glass several sums of money, about L. 10,000 principal, and many annualrents, he pursues the said Alexander Glass, alleging the assignation was in trust to his own behoof, and that Alexander promised to compt for what he should recover; and the said Alexander having alleged that he was obliged for no account, and having been appointed to give his oath what was the true cause of the assignation, and having begun to depone, being prest with several interrogatories, he took up the same, and offered a qualified oath in writ; whereupon the Lords, before they determined anent the oath, ordained an accompt to proceed what the sums were that were assigned and recovered, and what sums were due to Glass; in which account Glass gave in an article of 7000 merks, upon this ground, that the pursuer gave a bond for that sum to his niece, whereunto the defender hath now right jure mariti. It was answered, 1mo, That this bond was granted when the pursuer was a soldier at Newcastle, under his brother Colonel Rae; at which time he granted another bond to another daughter of the Colonel's of the like sum, which did nearly equal the principal sum of his stock, and must be understood to be done mortis causa, seeing he reserved not the annualrent, or any aliment to himself, and so is revocable; which is the more evident, that in the defender's contract of marrriage with the pursuer's niece, there is no mention of this bond, not so much as to oblige the husband to employ it for the wife's liferent, and the bairns of the marriage. 2do, The bond itself is conditional, “providing she marry with the pursuer's consent;” ita est, she neither required nor got his consent. The defender replied to the first, That donations mortis causa, are never understood, but when there is express mention of eminent death; and the neglecting of this bond in the contract of marriage, can be no ground to annul it, being done because at that time there was little hope of recovery of the debts, and the defender hath only recovered, a part from the Earl of Loudon wirh great difficulty, advance, and expense. And as to the second defence, the condition is purified, in so far as the pursuer is a witness in the contract of marriage, which must necessarily import that his niece married with his consent; and albeit he had given no consent, such clauses can import no more than a power to give a rational disassent; for, seeing matrimonia debent esse libera, it must not be every disassent that will hinder, but that which is founded on a good reason, and there was no pretence to have disassented from this marriage. It was duplied for the pursuer, That the subscribing as a witness doth import no more, but that the witness saw the party subscribe, and not that he read, much less considered the contents of the writ; and though the pursuer had known the contents, yet finding no mention of his bond in the contract, he could never think that it was a consent to purge the quality of his bond, which could not be a presumptive or consequential consent, but an express consent for purging the condition in his bond; for after so long a time he might have forgot there was such a bond; and albeit those who have a natural obligation to provide, giving bonds for tochers upon condition of marrying with their consent, if they do irrationally disassent, their natural obligation and the favour of marriage will take off their disassent; but where a person that is not naturally obliged to provide, gives a bond upon the condition of consent, his consent is meri arbitrii, and he needs render no reason for it but his particular affection, or disaffection to the husband; and in this case his consent was not so much as required: And that presumptive consents are not sufficient where express consents is required, is evident in many cases; as if a superior should subscribe witness to a writ, disponing ward lands, his subscribing witness could not import such a consent, as did ratify the deed, and take away recognition.
The Lords found that the pursuer subscribing as witness to the contract of marriage, or being present at the communing or marriage, did not import that consent that is required in the condition of his bond, unless it had been specially treated concerning his bond, he being present and knowing the same; and that his presence at the marriage, or living with the married persons thereafter, did not import that consent: but they did not find that the bond was a donation mortis causa, and so revocable.
