Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Elizabeth Cunningham and John Middleton v. Cunningham of Enterkin
1702.
JulyDecember22 and
29.
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July 22.—Elizabeth Cunningham, daughter to Enterkin, showing some purpose to marry one Mr John Middleton, son to Dr Middleton in Aberdeen; and her friends being dissatisfied with the match, she is prevailed with to grant an assignation to her brother of her bond of provision containing the sum of 10,000 merks, in case she shall marry the said Mr Middleton, reserving her the liferent of the said portion for an aliment. And the said Enterkin, her brother, by his acceptation of the said assignation, obliges him, on her marrying any other person with her friends' consent, to retrocess her to her said tocher, under the penalty of 10,000 merks more. Notwithstanding of all which, the said Elizabeth marries Mr Middleton, and they pursue a reduction of the said assignation and discharge, as elicited from her after her affection was fixed and settled on the said Mr Middleton, which was a bar and restraint put on her, contrary both to the divine law and natural right, introducing a free liberty and election in marriage, and so contra bonos mores, especially where there is no disparity between the parties' births, as there is none here; and though there is no great fortune brought in by the husband, yet the comfort of marriage depends not so much upon that as the adaptation of the parties' humours with one another: and therefore minors, or persons interdicted, can marry without consent of their curators or interdic-tors; and law annuls all deeds giving any bias or stop to the freedom of electing their partner in this indissolvable society; and besides many of the lawyers, Voet ad Pandectas, tit. De Pactis, says, Improbata sunt pacta matrimoniorum libertati contraria, ut si duo sic inter se paciscaniur ut titer eorum prius matri-tnonium iniverit, is alteri solveret certain pecuniae quantitatem.
Answered,—Total restraints upon marriage are indeed prohibited and repudiated in law; but not where it is only a withholding them from marrying one particular person, leaving them free as to all others: Yea, Justinian, in his Novel Constitutions, goes a greater length; for those repudiate the condition adjected to a legacy left to a maid, providing she do not marry; yet, if it be left with that quality to a widow, she cannot claim the legacy if she desert her vidual state, and reenter into the married; for then she forfeits the sum left: But the case in hand is much more easy and favourable; for she being major, what was to hinder her from giving her brother an assignation to her tocher in the event of her marrying Mr Middleton? All will agree that the father could have burdened her bond of provision with that express quality and condition; and, if he could warrantably do it, why might not she do the same, seeing there is more of a metus reverentialis in following a father's recommendation than can be supposed here.
The Lords thought the case of importance for the preparative, it being a great benefit to girls to be restrained from extravagant marriages; therefore, they ordained it to be heard in their own presence.
Vol. II. Page 155.
December 29.—The action Cuningham and Middleton, her husband, against Enterkin, (mentioned 22d July 1702,) being heard this day, it was alleged, That both parties had submitted verbally to my Lord Whitelaw; and it was offered to be proven, that he had emitted his determination, and so lis erat finita. Answered,—That there was locus panitentia?, and each party had liberty to resile; and Enterkin had done so, it not being in writing. Replied,—Verbal submissions and decreet-arbitrals required no writ, farther than the arbiter's decision under his hand; which the Lords had found obligatory in a case, 7th February 1671, Home against Scott; and that it was sufficient to prove, by the party's oath, that he had submitted, and, by the arbiters' oath, that they had accordingly determined. And here the submission was judicially done, and consisted with the remembrance of the whole Lords; and my Lord Whitelaw declared, he had given in his determination in writ, that the papers might be accordingly extended, and subscribed by both parties, though now one of them does not acquiesce therein. But the parties afterwards agreed.
