Scottish Court of Session Decisions

Subject_1 CLAUSE.
Subject_2 SECT IV.

Clauses in Contracts of Marriage.

James Gray, Writer to the Signet, Assignee of Margaret Mathison,
v.
William Hutton, Assignee of Patrick Thomson

Date: 2 December 1724
Case No. No 25.

A father, as burden-taker for his son, a minor, became an obligant in his son's contract of marriage. The son was taken bound to lay out a sum on good security. This obligation was found to affect the son only, not the father personally.

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Thomas White, eldest son to Thomas White, indweller in Leith, entered into a marriage contract with Margaret Mathison, in which the father was consenter and burden-taker for his son, and became obliged to pay to him 3000 merks; which, with 2000 merks brought as tocher with Margaret Mathison Thomas the son obliged himself to ware, bestow and employ upon land, or good security for interest, for himself and his wife, for her liferent use allenarly, and the bairns of the marriage in fee.

Thereafter Thomas White elder, in his daughter Marion's contract of marriage with Patrick Thomson, covenanted to pay with her 4000 merks of tocher. Of this contract James Gray, as assignee of Margaret Mathison, relict of Thomas White younger, raised reduction upon this ground, That Thomas White elder, having become bankrupt, could not enter into such an obligation in prejudice of Margaret Mathison's liferent provision, for which he was priorly bound, as burden-taker for his son, by which he, as correus, had subjected himself to the fulfilling of any obligation his son had come under in his contract of marriage with her.

It was answered, That the father became only obliged to pay 3000 merks to his son, but was not bound to employ the same with the wife's tocher; that the son alone was taken bound to perform that part of the contract; and though the father, as administrator in law, authorised his son, because then a minor, which gave occasion to the usual clause in the beginning of the contract, ‘With the special advice and consent of his said father, and the said Thomas White elder, for himself, and taking burden upon him for his said son, and they both of one consent and assent,’ &c. yet that could never imply that the father was cautioner for the son in those obligations in which the son was alone bound.

The Lords found, That Thomas White elder was not bound in his son's contract of marriage for the liferent of the 5000 merks thereby provided to his wife Margaret Mathison, and now assigned to James Gray; and therefore found he could not reduce Thomson's contract of marriage on the ground of that credit.

Reporter, Lord Cullen. Act. Ch. Binning. Alt. H. Dalrymple, sen. Clerk, Mackenzie. Fol. Dic. v. 3. p. 127. Edgar, p. 125.