Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Mr Robert Lundie
v.
The Marquis of Dowglass

Date: 11 January 1681

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Mr Robert Lundie, as assignee, by Janet Jack, to a bond of 50,000 merks, granted to her by the Marquis of Dowglass, charges the Marquis for payment; who Suspends, and raises reduction upon these reasons, 1mo. That albeit the bond bear borrowed money, yet it is notour that Janet Jack was a person of no fortune, but in the Marquis's family; and was never able to lend any sum: and, therefore, unless she can instruct a just cause, the bond must be declared null, and sine causa. 2do. If need be, it is offered to be proven that the bond was granted ob turpem causam, scilicet stuprum; which is reprobated in law. 3tio. This bond is discharged; and the discharge is produced long before the assignation.

The pursuer answered, That all promises and obligations are, with us, effectual; and, if there be no cause onerous, it is always interpreted gratuitous and donative. To the second, the law says, l. 4, § 3, ff. De Condictione ob turpem causam: —Mulier turpiter facit, quod sit meretrix, sed non turpiter accipit mercedem cum sit meretrix; and l. 8, ibid. In turpi causa, ex mutua turpitudine, potior est conditio possidentis: so that Janet Jack having the bond, the Marquis, who is in eadem turpitudine, cannot object. 2do. Though this were relevant, seeing the bond bears borrowed money, it is only probable scripto vel juramento of the assignee. And, as to the discharge, there is a reduction against the same produced: first, Upon extortion and force, that it was granted by the said Janet when she was kept close in a chamber in Dowglass. 2do. Upon minority.

It was replied, That the allegeance from the civil law is an assertion of Ulpian, who was a heathen, and is rejected by all Christian nations, and by our custom: and, albeit the parity of the turpitude might hinder restitution, because potior est conditio possidentis, yet the Marquis not having paid, he is in possession of the sum et in potiore casu. And, whatever might be alleged as to obligements ex post facto, which were not anterior to, and the inducements of, crimes, it is notour this bond was granted to induce fornication; that Janet Jack became an impudent strumpet to the Marquis and others. And, as to the reduction of the discharge ex metus causa, it is not relevantly libelled; but, however, there are produced several letters posterior to the bond, requiring Janet's mother to deliver up the same, in respect of the discharge granted before. And, as to the minority, the discharge bears a promise, upon Janet's great oath, never to quarrel the same; and, by the authentic sacramenta puberum, and by the custom of this kingdom, such oaths exclude the restitution of minors.

It was duplied, That this bond contains only an assertion, but no oath, unless the name of God had been invocated; and the acting contrary to such assertions, infers no perjury.

The Lords found, That the want of a cause was not relevant to reduce the bond; but, in respect of the notoriety, that the cause expressed of money lent, could not be true, they ordained witnesses to be examined what was the true cause of the bond, before answer as to the turpitude, or as to the oath; but found, that the letters produced did sufficiently elide the allegeance of the extortion of the discharge.

Vol. II, Page 829.