Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.

Marjory Forbes, Lady Drum,
v.
Robert Keith of Lentush

Date: 20 February 1700

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Mr Robert Keith of Lentush having proposed a marriage betwixt the late Alexander Irving of Drum, and Marjory Forbes, daughter to Auchreidy; and for the more secrecy, and as Drum was fickle and changeable, he, in 1688, supplies the place of a minister, and celebrates the marriage himself; but, to secure him against all damage, (as he foresaw that he would lose his place as one of the Regents of the College of Aberdeen, as actually he did,) he took a bond from her, the day before the marriage, for £10,000 Scots. The said Marjory, now Lady Dowager of Drum, raises a reduction of that bond on thir three reasons, 1mo, That, by ocular inspection, the bond has been originally blank, not only in the creditor's name, (wherein Sir Alexander Forbes of Tolquhon is now filled up for Lentush's behoof,) but even in the sum, term of payment and penalty, and is filled up with a different hand and other ink; and therefore, being after the Act of Parliament 1681, it is null, not mentioning who filled up these blanks; neither is it sufficient that the writer of the body of the bond is named, seeing these substantial parts of the bond are visibly writ by another hand; and therefore, not being filled up at the date of the subscribing, it must be presumed to have been blank at her marriage, (which was that very next day,) and could not be filled up then, being vestita viro, and capable to grant no bond. See the like presumption sustained by the Lords, 15th January 1670, Lady Lucia Hamilton against the Creditors of Mountcastle. 2do, Mr Robert's wife being the said Lady Drum's aunt, he was her uncle-in-law, and so he acted contra bonos mores to make merchandize of her; and, both by duty and relation, was bound to promote her marriage without a bribe; and the Lords have found a step-father ought to take nothing from a step-daughter's husband for making the marriage; and see the like decided in the case of a Tutory, 5th March 1629, White against Douglas. 3tio, The bond should be reduced; because, in a communing betwixt them, he declared he would deliver it up, and refer his gratuity to friends; and, instead thereof, gave her a copy to burn, and kept up the principal bond.

Answered to the first, There is nothing more ordinary than to have blanks in bonds, and to fill them up at delivery; and it would endanger many writs if that were sustained to be a nullity, that it appears the writ has been ab initio blank; so it can only be proven, by the defender's oath, that it was not filled up till after her marriage. To the second, It cannot be denied that, as a woman may grant a bond, if perfected before the marriage, so a party may receive a proxeneticum and gratuity for procuring a profitable marriage; and the Lords did lately sustain the same to Sir John Cochran against the Earl of Buchan. As to the third, Being a circumvention, the same is denied as calumnious and false.

Replied,—Whatever a stranger might take, he who was a relation could not take so exorbitant a reward on the very brink of the marriage; and what was decerned to Sir John Cochran was not a gratuity, but his real debursed expenses.

The Lords ordained the case to be reasoned in their own presence.

Vol. II. Page 90.