Scottish Court of Session Decisions

Subject_1 PACTUM ILLICITUM.
Subject_2 SECT. VI.

Pactum contra Fidem Tabularum Nuptialium.

Kennedy
v.
Agnew

Date: 30 June 1665
Case No. No 25.

The Lords refused to reduce a bond granted by a son, without the knowledge of his father, to his father-in-law, for diminution of the tocher, because the sum was small and the lesion inconsiderable.

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Andrew Agnew, Younger of Lochnaw, granted a bond for L. 1000 to Thomas Hay of Park, his father-in-law, which being assigned to Thomas Kennedy of Kirkhill, he charges young Lochnaw; who suspends, and intents reduction, with concourse of Sir Andrew Agnew, his father, upon this reason; that the said Andrew having married Park's daughter, Sir Andrew did provide his son and her to a competent provision, and the heirs of the marriage also, for which, in name of tocher, Park was obliged to pay Sir Andrew L. 10,000, this being a solemn contract of marriage, Park did most fraudulently, contra bonos mores, without the privacy or consent of Sir Andrew, procure this bond from his son-in-law, the time of the contract, there being nothing treated thereof betwixt the parents. It was answered, That the reason is noways relevant; because, Park having given a considerable tocher with his daughter, for which the provision was made by Sir Andrew to his son, it was lawful for Park to take a bond for so small a sum, being only the tenth of the tocher, and which was only payable after his wife's death, wherein no circumvention was used, nor enorm lesion to the granter.

The Lords, in respect of the meanness of the sum and small lesion, assoilzied.

Fol. Dic. v. 2. p. 22. Gilmour, No 153. p. 109. *** Stair reports this case.

1665. July 27.—Kennedy of Kirkhill, as assignee by Thomas Hay of Park, to a bond of L. 1000, granted by Andrew Agnew, Younger of Lochnaw, charges him thereupon, who suspends, and raises reduction on this reason, that the bond was granted at the time of his contract of marriage, clandestinely, without the knowledge of his father, who was contractor, contra pacta dotalia, et contra bonos mores. The defender answered, That he having given a very great tocher, viz. L. 10,000, above his estate, which is all paid to his good-son's father, he did declare, that he was not able to give so much, and thereupon he got this bond, not to have execution till after his death, which he might lawfully do, having given a tocher suitable to the condition of the receiver, and above the condition of the giver.

The Lords repelled the reason, in respect of the answer.

This was thereafter stopped, to be further heard.

Stair, v. 1. p. 302.