Parents, Tutors, &c. taking money under the name of a Gratification.
Hamilton v. Borthwick
Date: 23 June 1680 Case No. No 10.
Turpis causa being alleged against a bond granted by a person in suit of a woman to her mother “for expenses laid out upon her daughter,” was sustained only in so far, as evidence of expenses could be given.
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Hamilton of Balderston having charged Francis Borthwick upon his bond of 3,500 merks, he suspends on this reason, that the bond was procured contra bonos mores, and so is null; for though it bear borrowed money, yet there is a back-bond produced, bearing, that the true cause was for expenses wared out for her,———Brown, by the mother, for the charger her husband; and that if the marriage then intended between her and the suspender took not effect, then the suspender should be free; which being five months before the contract of marriage, shows clearly, that the bond was granted to promote the marriage, and to overvalue the expenses, where indeed none is due, the mother in her vidowity being obliged to entertain her daughter in bed and board gratis, and the suspender since her marriage hath paid her cloths to merchants; and so it was a most unwarrantable deed by a step-father, upon an unjust pretence, to make merchandise of his step-daughter. The charger answered, That albeit the backbond had been inserted in this bond, acknowledging the expenses to have amounted to 3,500 merks, it did sufficiently instruct the same, and liberated the charger, all exceptions being renounced by one who was major sciens et prudens, who hath gotten above L. 1000 Sterling with his wife; and therefore, though her mother had been obliged to entertain her freely, he might in gratitude and remuneration have given this sum; 2do, The law allows gratifications proxenetis for interposing and promoting of marriage, which is very lawful. It was replied, That it is never lawful to the parent, tutor, curator, or the step-father, who is in place of a parent, and who are obliged to be for the woman, to do any thing for any other deserving gratification, otherwise on this pretence, mothers and their husbands, and tutors and curators, would be encouraged to betray their trust, and for gratifications prefer undeserving persons.
The Lords would not sustain this bond alone without an astruction of equivalent expense, but would not put the charger to astruct it by probation, but ordained him to condescend on the expenses, and to adduce such evidence as he could, and ordained the mother's bond to be produced, reserving to the Lords what the probation should operate, as to the modification of the expenses.
