brown case William MORISONE of PrestonGrange Esq appellant the right  honourable John viscount Arbuthnot respondent that march Mews dig seven see  Cooper v Cooper lr Ch a obligation procure from a infant by the father of his  intend wife in fraud of marriage article public agree to by the infant and his  friend be absolute void see ante vol go title fraud case and and the note  there bro p c on a treaty of marriage in the year between the respondent then  a infant of the age of seventeen year and jane afterward viscountess of  Arbuthnot the appellant second daughter after several meeting between the  appellant and respondent at which the respondent near relation be the treaters  for he it be agree that the appellant shall pay to the respondent mark scot or  pound S d English money at different term as his daughter marriage portion and  in consideration thereof and of the marriage the respondent be to secure to  his lady in case there shall be maleissue of the marriage a jointure of mark  per annum and in case there shall be no issuemale a jointure of mark per annum  and in this last event if there shall be but one daughter of the marriage the  respondent be oblige to provide such daughter the full sum of mark the portion  that come to he by her mother these condition be with diverse other open treat  and agree to marriage article be on August fair make out and execute by the  appellant and his daughter afterward the respondent lady and by the respondent  in the term brown treat and agree on and in those article there be a special  clause oblige the respondent when he shall come of age to ratify and confirm  the settlement in all its part and though by the deed several parcel of the  marriage portion be Payable before the respondent shall come of age yet the  payment of these sum be suspend until the respondent shall be of age and  ratify the marriage article as aforesaid these article be execute with great  solemnity and witness by diverse person of distinction friend of either party  and the marriage ensue after the respondent come of age he do by a deed of  ratification date that July recite the say marriage article in so far as he  stand bind thereby to settle the aforesaid jointure and other provision upon  his lady ratify and confirm the say marriage article and the same be accept of  by his lady and this deed of ratification be registrate accord to the law of  Scotland on the night before the execution of the marriage article videlicet  the that August take advantage of the respondent minority without the  knowledge or privity of any of the respondent friend or relation and  notwithstanding the appellant agreement to give his daughter mark portion  prevail respondent to sign a write in the word follow videlicet be it know to  all man by these present letter we John viscount of Arbuthnot Lord of  Inverberve baron of arrot etcetera forasmuch as we be real resolve to marry  mrs jane Morisone second lawful daughter to the much honour William Morisone  of Preston grange and for that effect to enter into and subscribe a contract  of marriage pass betwixt we and several of our friend on the one part and the  say mrs jane Morisone our say promise spouse with consent of her say brown er  p father on the other part wherein the say William Morisone of PrestonGrange  be to be bind to pay to we our heir or assign in the name of tochergood or  mariageportion the sum of mark Scotch at the year and term therein mention for  the which we be to grant a suitable jointure to our say promise spouse conform  to our quality and the say marriageportion and the fee of our whole real  estate with the title of honour and dignity to the heirmale to be procreate  betwixt we and the say mrs jane Morisone our say promise spouse and now see we  be convince that the say William Morisone will be at the expense and charge of  a considerable sum of money before our say marriage be complete settle and end  and that our friend and relation will have no less sum of money in the say  contract matrimonial than the say sum of mark money aforesaid in name of  marriage portion although we be satisfy that the say Laird of PrestonGrange do  never condescend and agree to more for our tochergood brown than the sum of  mark money aforesaid yet notwithstanding for several onerous and diverse cause  and at our earnest desire and serious request the say William Morisone of  PrestonGrange bath consent to subscribe the say contract of marriage for the  say tochergood as mark money aforesaid upon the express grant of this our  obligement underwritten therefore wit the we to be engage and oblige upon our  honour and have bind and oblige like as we bind and oblige we our executor and  successor to subscribe and deliver to the say William Morisone of Preston  grange his heir and assignee a sufficient good and valid exoneration and  discharge of mark money aforesaid as a part of the say mark to be insert in  our say contract of marriage and that so soon as and immediate after we come  to our majority of twentyone year complete and that under the penalty of mark  money aforesaid of liquidate expense present modify in case of failzie by and  attour the premise this obligation be so secret obtain that it be execute only  in the presence of the appellant servant who write it and the respondent valet  when the respondent come of age think himself injure by this obligation so  clandestine obtain from he under age and at a juncture when his engagement to  his lady oblige hint to comply with it he think fit to revoke the same saint  January and all other deed whatsoever grant to his prejudice while a minor by  a deed of revocation accord to the form of the law of Scotland which be record  the d of February follow and very soon after bring his action of reduction  before the lord of session against the respondent to have the say obligation  reduce and annul for that the same be grant by he when a minor without consent  of his guardian dly that it be contra fide a board nuptiali to elicit such a  write clandestine contrary to a solemn contract enter into in presence of all  the respondent friend to which action the appellant appear and the respondent  produce the say marriage article and ratification aforesaid of the same with  the say deed of revocation at the first hear of this cause the respondent  counsel insist that the appellant shall take a day for produce the say  obligation or that their lordship shall grant certification the appellant  counsel insist that the respondent ought ante in all respects to depone de  trickery I e that he have reason to prosecute that suit because at the time of  grant the obligation the respondent promise on his honour to do nothing  contrary to it but the lord overrule the appellant and grant certification  against the obligement call for and reduce and decree to be extract at the  ordinarys sight brown against the say interlocutor the appellant petition the  whole lord set forth that by stat act par James all party be bind to swear de  calumnie in beginning lawsuit if require that by the form of the write  complain of it appear the respondent have draw in the appellant to this  transaction and that the appellant have not urge the respondent to it that  therefore he apprehend the respondent can not swear de trickery or give his  word of honour that he have just cause to insist and consequent he the  appellant conceive he be entitle to demand his oath of calumny and therefore  pray that ante in all respects the appellant shall swear de trickery brown er  p to this petition it be answer on the part of the respondent that the statute  refer to in express word oblige only such person as be present to swear de  trickery and make provision that when party be absent their procurator shall  swear upon their belief and opinion that the argument find on the word of the  write complain of be of no force because the same address that can persuade a  infant to do a deed prejudicial to his interest will induce he to agree to any  sort of recital wherefore the recital can be no evidence and leave the case  upon the general foot of a clandestine transaction into which the respondent a  infant be draw contrary and derogatory to the ouvert treaty to which his  friend and guardian be witness the lord have advice the above petition and  answer find that the appellant ought to take a term in the exhibition and at  the same time find that the viscount ought to give his word of honour upon the  appellant allegiance against this interlocutory the respondent reclaim set  forth that as no particular fact be or can be put to his oath in a oath of  calumny the matter on which the appellant want he shall swear can be nothing  else possible but a matter in jure videlicet whether a minor or infant over  persuade to do a act to his prejudice can lawful insist to be relieve from the  effect of that act do in minority and as the respondent be he present can  swear to that matter only as he shall be advice by his lawyer who be then  Willing to give their oath that a minor lease may lawful revoke his act there  can be no occasion to bring the respondent from the country to swear to a  point of this nature the rather that as circumstance then be the rebellion be  on foot the country be in great confusion and no communication open between  the north country where the respondent then be and Edinburgh whither he must  come to depone therefore pray that the cause may be proceed in and that the  respondent may not be oblige to swear de trickery contrary to the form of the  act of parliament above mention which oblige such as be present only to swear  to this petition answer be give in on the part of the appellant and the lord  have advice the say petition and brown answer with the act of parliament above  mention find that the point on which the parole of honour be pray be in jure  the respondent be not bind to give it and remit to the lord ordinary in the  cause to assign a day when the cause be call before the lord ordinary the  respondent counsel insist that the appellant may take a day for produce the  obligation call for or that his lordship will order the certification to be  extract the appellant counsel pray a competent time for produce and his  lordship sustain process and assign a day to the appellant for produce the  obligation call for with certification the cause be again call before the lord  ordinary the respondent counsel pray the appellant may produce the obligation  call for in term of the above interlocutor which be accord produce the lord  ordinary make avisandum therewith to the whole lord the cause be remit to the  Lord cologne ordinary the counsel on both side appear that June before his  lordship the respondent counsel insist that the obligation produce ought to be  reduce and make void for that it wag elicit from he in his minority to his  prejudice and in defraud of the marriage settlement that be open and fair by  the assistance of the friend on either side agree to and execute it be answer  for the appellant that deception non decipient to come to help jura so that  minor be not restore against all deed wherein they be overreach and in the  present case pray to be reduce it be plain the minor deceive the appellant and  not he the minor see it bear that the appellant be never Willing to give more  than mark and that it be at the minor desire and to please his friend that the  appellant have be induce to put mark into the marriagearticle and therefore  the minor can have the benefit of that circumvention and this be instruct by  the recital of the obligation in doubt pro writing to fine dly the obligation  be prior to the marriagearticle can not be contra fide a board nuptiali dly  though the private transaction between the respondent brown er p and the  appellant may be void if it contain any thing prejudicial to the interest of  three party contractor yet in this case where it affect nothing but the  interest of the respondent himself he can have relief against his own deed and  thly minority alone be not a sufficient ground for restitution unless the  party can further allege lesion which can be do in this case because by the  write complain of it appear that the appellant from the beginning be to have  give no more than mark and it can be say the respondent hurt himself by accept  of that sum which nevertheless be all the effect of that write brown it be  reply by the respondent to the first that the recital of a deed do by a minor  to his prejudice be no manner of evidence and where it be manifest there have  be a deception if it be question from who it have its rise the law presume it  be not cause by the infant and in this case it be not so much as offer to be  prove that the proposition of grant the write complain of come from the  respondent and not from the appellant to the d though the obligation complain  of be in date a day prior to the execution of the marriage article yet it be  manifest frame after the treaty be conclude and bear a express relation to and  derogation from those very article must be deem to be contrary to that good  fides that ought to prevail in such settlement to the d the interest of the  wife and child be virtual affect by any thing that impair the husband or  parent estate and though there be no prejudice to any person but the  respondent only the induce he to a private settlement hurtful to himself  contradictory to the ouvert treaty be in itself fraudulent and what must  afford relief to a minor lease to the that the give away mark part of what the  appellant contract to pay be direct lesion for on the supposition that the  appellant will not have consent to the marriage but in view of be discharge of  pay those mark it be evident he can not have demand a jointure to his daughter  suitable to the whole portion of mark nor a provision of mark to the only  daughter of the marriage under the description of her mother tocher good which  be the word of the marriage article but as he insist for and obtain those  condition the strike off one five part of the sum promise as his daughter  portion which be the cause of those provision while the respondent remain  subject to the obligation that by the article be bring upon he be a manifest  lesion and prejudice this debate the lord ordinary undertake to report to the  whole lord but before report of the same the appellant counsel apply for some  time until they shall have instruction from the appellant who be then at  London and their lordship delay the report of the cause d November on the  report of the Lord ordinary to the whole lord their lordship have consider the  above debate with the obligement produce they by their interlocutor sustain  the reason of reduction find upon minority and lesion and contra fide a board  nuptiali and repel the defence that the appellant refuse to engage to give  more than mark of portion conform to the paper grant by the viscount of  Arbuthnot to the appellant till the paper produce be grant and that the grant  of brown that paper be at the desire of the Lord Arbuthnot and not propose by  the appellant as not relevant to elide the reason of reduction the appellant  offer another petition to the lord complain of the say interlocutor upon the  ground abovementioned to which petition the respondent give in his answer and  the same with the petition be advice by the lord and special that it be not  allege in the petition that the paper grant by the viscount be propose by he  to the appellant to accommodate difference between they as to the tocher to be  give by Preston grange and not propose by Preston grange to the viscount their  lordship sustain the reason of reduction find upon minority and lesion and  contra fide a board nuptiali and repel the defence that the defender refuse to  engage to give more than mark of portion conform to the paper grant by the  viscount to Preston grange the defender till the paper produce be grant as not  relevant to elide the reason of reduction and therefore reduce and decern and  declare the aforesaid brown er p obligation to have be iron the beginning to  be now and in all time come null and of none avail strength force or effect  with all that have follow or may follow thereupon against which degree the  appellant think fit the last session of parliament to offer his petition of  appeal after he have acquiesce in the same for eleven year and frequent  promise payment in order to defeat the respondent diligence to preserve his  preference against other creditor of the appellant No counsel appear for the  appellant the appeal be dismiss with pound cost counsel for the respondent  dunc Forbes c Talbot