Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 PACTUM ILLICITUM.
Subject_3 A marriage-brokage obligation contra bonos mores, and not actionable.

Janet Thomson
v.
Hugh M'Kaill

Date: 4 February 1770

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[Foe. Coll. V. 50; Dictionary, 9519.]

President. The first question is, Whether is this obligation actionable? Secotid, Whether Janet Thomson has performed? As to the first, the stipulation is contra bonos mores: In giving any one assistance towards matrimony, there must be no lucrative stipulation. It is turpe to bargain money. The consequences must be fatal to society. It is a shameful trade, no matter whether concerning a match with one woman or with any woman: In both cases the match-maker is maquignon de chair humaine. I will say nothing of the decree of the House of Peers, in Lady Mary Herbert's case. That house may decide upon large principles of equity; but I think the Chancellor's judgment was right. This negotiation was carried on without the approbation of some of the parents. The young woman's father knew nothing of it. Dallas urged on the poor weak lad. He, in effect, says,—” Marry the woman against her father's will, or without his knowledge:” that is, “Be as unhappy as you please, provided I get my nine guineas.” Plain that M'Kaill knew nothing of the marriage till after it was consummated. The young woman also was deceived by false representations of the state and fortune of the young man. I also doubt as to the condition of the contract being fulfilled. By the condition, a marriage-contract was required, and this implied the consent of parents.

Coalston. No argument has been pleaded, here, in support of the obligation, which might not have been equally pleaded had the bargain been made to get a footman married to the lady of the highest rank in the kingdom.

Kaimes. M'Kaill ratified the marriage. This might have been sufficient, had the question been solely with respect to implementing the condition; but the obligation itself is contra bonos mores; for the implementing could not be without dissimulation and guile. Janet Thompson could not say to the young woman, “I am to have nine guineas if I can conclude a match between you and Walter M'Kaill.” She was therefore bribed to act falsely, and falsely she acted.

On the 13th February 1770, “The Lords found that the office undertaken by the pursuer, in terms of the missive, was contra bonos mores; refused action, and found expenses due.”

Act. R. Sinclair. Alt. G. Ferguson. Reporter, Kaimes.