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Where Writ is not necessary. - Where a Bargain is agreed to be perfected in writing. - Locus pćnitentić after Writ is interposed. - Where the Right to be granted is disputable. - Verbal Bargain for a Lease
William Young in Alloa, v. Margaret Irvine, and John Anderson, her Husband
Date: 21 January 1715 Case No. No 68.
Found, that no marriage having followed, after a contract of marriage had been executed, there was locus pćnitentić, and no penalty exigible.
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A contract of marriage, in common form, having past betwixt the said parties, (the woman being in familia of her father) and a penalty of L. 100 Scots adjected thereto; the woman nevertheless marries another person, whereupon the man insists for the penalty against her and her husband.
Answered, That this contract imported no more but a resolution, which, re integra, may be receded from; specially since matrimonia debent esse libera; 2do, She being a child in familia, the contract was contra bonos mores; 3tio, No diligence is competent here for implementing the principal contract, far less then for the penalty, since accessorium sequitur suum principale.
Replied, 1mo, That the contract was an actual obligation to solemnize, and the penalty comes in place of performance, to which the pursuer has right nomine damni, and nemini admittendum est consilium mutare in alterius prejudicium; 2do, The contract bears, that she is obliged to marry with consent of her parents; 3tio, In the like case, Jamieson contra Sheriff, 14th December 1708, voce Writ, the Lords decerned for the penalty.
Duplied, That since res is still integra, no penalty in such a case can be insisted for, since that were to act in fraudem legis; 2do, As to the decision founded on, there was no decision as to the contract itself, but only as to the designation of the writer and witnesses, as is evident from the case.
The Lords found the answers and duply relevant to elide the libel and reply, and therefore assoilzied the defenders.
Clerk, Roberton.
Fol. Dic. v. 1. p. 565. Bruce, v. 1. No 35. p. 44.
