Scottish Court of Session Decisions

Subject_1 PACTUM ILLICITUM.

Sir Michael Stewart
v.
Earl Dundonald

1752, Feb. 7.
Case No. No. 25.

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In 1698 when John Lord Cochran had two sons alive, William Cochran of Kilmaron-nock, his uncle, gave a bond to Mr John Stewart of Blackball, bearing for a certain sum of money received to pay 100 guineas, how soon he or heirs of his body should succeed to the honours and estate of the Earldom of Dundonald. Sir Michael sued the present Earl the grandson of the General for the money, for that his father Thomas the son of Kilmaronnock succeeded to the honours and estate in 1726, and claimed penalty and annualrent from the term of payment in terms of the bond. The defences pleaded were that he had not succeeded to the whole of the estate, for that part had been sold, and a great part evicted by the Marquis of Clydesdale, now Duke of Hamilton, on a bond of tailzie by Earl John in favour of his daughter in 1716. I reported the case, and the Court took it upon a different footing, that the bond was contra bonos mores, that it was captare votum mortis viventis, and at best can be no better than the bond that Dr Abercrombie took from Lord Mordaunt on payment of L.200 to pay him L.800 on his succeeding to Earl Peterborrow his father, (No. 17.) where after the example of sundry English precedents in Chancery we gave the Doctor no more than his L200 and interest of it. Therefore did we know in this case the sum paid by Mr John Stewart, we could give him no more than that sum and interest of it, agreeably to the decision in the case of Lord Mordaunt; and accordingly we found this bond void and null, reserving to the consideration of the Court whether the pursuer ought to be repaid what money was paid for granting the bond, the pursuer proving the same, 22d December 1752. 7th February 1753, The Lords adhered by the President's casting vote.