William Alison, Merchant in Dundee, v. John Duncan, Merchant there
Date: 20 July 1710 Case No. No 33.
A man granted bond to a young woman, in consideration of a sum assigned to him, and bound himself to pay her a sum the next term after her marriage, provided he was informed of it, and gave his consent. She married without either, but the bond found due.
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John Duncan having granted a bond to Helen Straiton, daughter to Robert Straiton apothecary in Dundee, narrating, That Mr Patrick Yeaman indweller there, her uncle, had assigned to him certain sums, under the express provision and condition of his granting the obligement under-written; and therefore binding and obliging him to pay to the said Helen Straiton L. 1000 at the next term after her marriage; she always acquainting him therewith, and taking his consent thereto, if alive at the time; Helen Straiton, with consent of her father, but without acquainting John Duncan, married Robert Christie; who with her, assigned to William Alison, John Duncan's bond. Duncan being charged at the instance of the assignee, suspended upon this reason, That the cedent having failed to acquaint the suspender of her marriage, which is the condition in the bond, the obligement is null.
Answered for the charger; Not only is the condition in the bond, as contra libertatem matrimonii, to be held pro non adjecta; but also it is most odious and contra bonos mores; in so far as it tends to make the creditor depend more in the election of a husband upon Mr Duncan, than upon her own father, whom law presumes to have the most tender regard for her welfare and interest; 2do, There being no quality in Mr Patrick Yeaman's assignation to Mr Duncan, which was the onerous cause of his granting the bond, it was unwarrantable in him to clog his bond with any such quality.
