[1680] 3 Brn 319
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL
Subject_2 SUMMER SESSION.
Date: Andrew Caddel
v.
Alexander Rie [or Reath]
8 January 1680 Click here to view a pdf copy of this documet : PDF Copy
Alexander Rie marrying Andrew Caddel the vintner's daughter; in the contract of marriage Alexander's father is obliged to lay 3000 merks to her tocher, and to provide it to the married couple in liferent and conjunct fee, and to the bairns of the marriage in fee. Within half a year thereafter, the father impetrates a discharge of this 3000 merks from his son. Which discharge being quarrelled by the wife and the son's creditors, Lord Saline found the discharge null and fraudulent, et contra fidem tabularum nuptialium, unless Alexander Rie, the father, would either prove the numeration of the money, or the giving his son assignation to sufficient bonds or merchant ware; or, 2do, will prove that the said sum was reemployed for the wife and bairns' use, conform to the destination of the contract of marriage. Vide supra, 19th November 1679, Wemyss: and 8th January 1679, Lady Knox. The father not resting satisfied with Salin's interlocutor, he, on the 21st of January, reported it to the haill Lords; and they found the son's discharge to the father might prejudge himself, but not the obligement for the wife's liferent, nor the son's creditors, though they became only creditors after the discharge was granted; they proving that it was communed betwixt the father and the son, that he should give the father this discharge, (which they referred to the father's oath,) or proving any other collusion betwixt them, which may render the discharge fraudulent; in which case the Lords would not regard it as contra fidem pactorum dotalium.
If a man or a woman do any deed betwixt the contract and marriage, derogating from and altering the solemn stipulations contained in the contract matrimonial, the Lords distinguish thus:—Either he or she are free persons, whose parents are dead, and have the disposal of their means in their own hands, and are majors, and have contracted for themselves; or they are minors, and sub potestate parentum, and their portion or tocher is peculium profectitium from the father or other friend who contracts in the tabulæ; nupliales. In this last case, any second latent paction betwixt the contract and marriage, innovating the conditions of the contract, without the consent of the whole other parties contractors and friends, the Lords will incline to find them null; but in the first
case they will sustain them, being done by them who are sui juris. Vide Ann Robertum Rer. Judicat. lib. 1, c. 2, et lib. 4, c. 1. Durie, 29th November 1626, Scot. I Hear that in 1678 the following case was decided:—A father, in his son's contract of marriage, dispones the fee of lands to him, with the burden of 4000 merks; but, during the ceremony and treating of the marriage, he takes a bond privately from his son, to pay him 6000 merks towards the provision of his younger children. This bond being thereafter quarrelled as contra pactum dotalitium, the Lords reduced and annulled the said bond quoad excessum of the 2000 merks.
1680 January 8.
It was debated in a case, where a woman grants a bond betwixt her contract and her marriage; it is clear the bond does not oblige her husband; but quær. if she become a free woman afterwards, if she will be liable for the sum therein contained, as being granted by her ante matrimonium consummatum; or if the bond will be simply null, as if it were granted by her stante matrimonio. This is a very dubious case.
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