Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Lawson of Cairnmuir v. John Kennedy, Apothecary
Date: 15 February 1694
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Lawson of Cairnmuir, against John Kennedy, apothecary, for implementing the contract of marriage with Bailie Lawson's wife's mother, whereby he was obliged to provide the heirs, or bairns of the marriage, to the sum of 10,000 merks, and to all the conquest during the standing of the marriage; and Bailie Lawson's wife was the only child of that marriage.
The Lords found he was obliged to fulfil the specific obligement of the 10,000 merks, and that he ought to secure her presently in it, payable at his death; but so as that it did not tie him up from necessary deeds; only he could not gratuitously exhaust it. But, as to the other conclusion of the libel, that his conquest during the continuance of that marriage should be liquidated by his oath, the Lords demurred exceedingly on it; thinking it would weaken and dissolve the paternal authority, and be a seminary of pleas for children against their parents; and that the conquest could no more be known before one's death, than, Solon said, a man's happiness could be determined sooner; and that this clause of conquest was only a mere destination. On the other hand, it was argued, that there was no other way of constituting and liquidating the conquest but by the father's oath; and, if it were delayed till after his death, it would occasion an inexhaustible nursery of pleas among the children of several marriages, who, through the changing of bonds from one hand to another, could never clear when it was first conquest. And that they sought the liquidation for no other effect, but only that it might be known: for, neither could any inhibition be served thereupon, neither could it impede his rational deeds of administration; so that he might bestow a part of the first conquest on a wife and children of a subsequent marriage, or on other just and necessary affairs; and that, in trading merchants, clauses of conquest did not bind them to implement, because that would mar traffic; but that held not in others. And, in their favours, they cited Durie, 13th February l677, Fraser. The Lords, finding inconveniences on both sides, declared they would hear it in prœsentia.
