In Haltoun's case it was found that the party, when he subscribed, was not so drunk as not to have the use of his reason, and the plea or ground of reduction founded on drunkenness was repelled. OUTLAWRY.1 A person attainted for high treason is incapable of holding estate, ATTAINDER AND heritable or moveable, all his property being forfeited to the Crown; neither can he validly enter into obligations or contracts. But he is not entitled to plead his own incapacity in bar of his own obligations.2 A question occurred, as to the right of a party, under sentence of outlawry for non-appearance on a criminal charge, to give directions to trustees (to whom, previous to the outlawry, he had conveyed his estate) for executing a deed of entail, and as to the validity of the registration of an entail executed in terms of his instructions; and it was found that the entail and registration thereof were valid and effectual, in respect that a sentence of outlawry does not deprive a party of the fee of his estate, or of the power of disposing of the fee.3 An alien, in a legal sense, is a person born out of the allegiance of ALIENS. the Queen, of parents neither of whom was a natural-born subject of the Crown, and whose father was not at the time of the birth of such person held to be a natural-born subject, by any of the Acts to be immediately referred to. Aliens are incapable of acquiring heritage in Scotland, either by purchase or succession.4 a The rules of policy, on which the exclusion of aliens, as here stated, was founded, have been greatly relaxed by successive Statutes. By the Acts 7 Anne, cap. 5, and 4 George II. cap. 21, children born out of the allegiance of the Crown, whose fathers were natural-born subjects of Britain at the time of such children's birth, are to be held natural-born subjects. By 13 George III. cap. 21, the same privileges are conferred on the children of fathers who, in virtue of the former Statute, were to be deemed natural-born subjects, though their mothers were aliens. But the children must be lawful from the time of their birth. And by the Act 7 & 8 Victoria, cap. 66, the children, born out of Her Majesty's dominions, of mothers who were natural-born subjects, are declared capable of taking estate, real or personal. Every alien, being the subject of a friendly state, may take and hold every species of personal property except chattels real, which are interests issuing out of, or annexed to, real estates such as terms of years of lands; and every alien residing in the United Kingdom, and being the subject of a friendly state, may take and hold lands for the 1 Erskine, iii. 1. 16. 5 2 Serra v. Earl of Carnwath, 24 Dec. 1725, M. 10,449. 3 Macrae v. Macrae, 22 Nov. 1836, 15 Sh. 54; affirmed 27 June 1839, M'L. and Rob. App. 645. 4 Erskine, iii. 10. 10; Leslie v. Forbes, 8 June 1749, M. 4636; Dundas v. Dundas, 5 Shedden v. Patrick, 11 March 1852, a But see note a, next page. ALIENS. NATURALISA purpose of residence, or for trade or business, for any time not exceeding 2 a The Act 7 & 8 Vict. cap. 66 was repealed by 33 Vict. cap. 14, which defines the TION ACT, 1870. status of aliens in the United Kingdom. Sect. 2 enacts that Real and personal property of every description may be taken, acquired, held, and disposed of by an alien in the same manner as by a natural-born British subject; and a title to real and personal property of every description may be derived through, from, or in succession to an alien, in the same manner in all respects as through, from, or in succession to a natural-born 'British subject.' The Act does not qualify an alien for any office or franchise, nor to be owner of a British ship, and does not affect vested interests. Sect. 7 confers ou naturalised aliens in the United Kingdom all the political and other rights, powers, and privileges of natural-born subjects. TITLE V. UNLAWFUL CONSIDERATION, AND UNLAWFUL SUBJECT-MATTER. We have now examined the general requisites to be observed in the authentication of deeds; and have seen that certain parties are wholly, and others to a certain extent, subject to legal incapacity as regards the granting of deeds. But a further preliminary inquiry remains to be gone into. The object of all law is to promote what is beneficial and right; and, in order that deeds may be sanctioned and enforced by Courts of Law, the consideration for which they are granted, as well as their subject-matter, must be agreeable to good morals and public policy. Whatever is contrary to the moral or public law, therefore, is to be excluded from contracts or obligations. The general rule on this point. is thus stated by Professor Bell in his Commentaries: No claim or 'right of action can spring out of an illegal contract;' 'no Court will lend its aid to give sanction to a claim grounded upon immoral or illegal acts.' In his Principles, Mr. Bell quotes the maxim, adopted by our law from the Roman law, applicable to such cases, viz., melior est conditio possidentis vel defendentis, which operates in this way: no one can, at his own hand, enforce a claim against a recusant obligant; when parties refuse to fulfil their obligations, the aid of the Court is required; and, if the Court will not assist them, they are powerless; the Court, however, does refuse its aid to enforce an unlawful contract, and so the party in possession continues to hold,-melior est conditio possidentis. The party in possession gets the better of the claimant, because of the Court's refusal to interfere. There are thus certain classes of contracts or obligations which can not receive effect through the instrumentality of a deed, however regular and complete in point of form, and there are others in which clauses and stipulations in regular deeds will be allowed only modified effect. Contracts or obligations contra bonos mores can receive no effect. No claim will be enforced, founded on a bond granted as the price or wages of prostitution, especially when the bond shows that it was to be 1 Bell's Commentaries, i. 298. 2 Bell's Principles, p. 18. 3 Bell's Illustrations, i. p. 59, and cases of Hamilton v. De Gares and friend there cited. BONDS GRANTED PURPOSES. VOL. I. K OBLIGATIONS contra bonos mores. forfeited in case of the return to a virtuous life.' The objection of immoral consideration may also be stated in reference to a legacy by will; it is open to the executor to inquire whether the bequest was given ob turpem causam, with a view to its being set aside, if granted for such cause. But, as a general rule, a bond to the victim of seduction, granted after the criminal intercourse has ceased, and as a provision and compensation for injury done, and not being the result of any promise under which the illicit connection had been carried on, will sustain a claim. The same principle, however, which bars action on a bond or bill granted for an unlawful consideration, previous to payment, equally bars the claim to restitution after payment. The Court will not interfere in either case, therefore melior est conditio possidentis.* Obligations offensive to decency or morality, or having a tendency to mischievous or pernicious purposes, are not actionable. Thus action was refused for the price of a picture, which the defendant had cut to pieces as libellous. Likewise on a wager, connected with the life of Napoleon Buonaparte; and for the price of printing an obscene and indecent book. On the principle that marriage ought to be free of all improper restraint, and that it should proceed from free choice, a general restriction against marriage, imposed as the condition of the grant of a bequest, or the like, will be void. A bond or obligation by any individual engaging not to marry is null, as encouraging irregularity of life, and devoid of any proper interest in the obligee. Again, where a widow executed a trust-conveyance of her whole property acquired, and to be acquired, for behoof of herself in liferent, but so long only as she should remain unmarried, and to her deceased husband's children in fee, the qualification of her right of liferent was held ineffectual, as being in restraint of marriage; and, on the same ground, the conveyance of the fee was held effectual only as regarded what belonged to her previous to a second marriage.10 But there is nothing illegal in a stipulation in a contract or mutual deed of settlement between spouses, that the provision in favour of the surviving spouse shall be terminable in case of his or her entering into a second marriage."1 Although, however, everything of the nature of improper restraint, even when clear of direct fraud, is to be looked on with disfavour, distinctions are to be drawn between conditions relative to marriage, when imposed (1.) In obligations granted by a father, in consequence of his natural liability to provide for his children; (2.) When he is merely 1 Bell's Illustrations, i. p. 60, and case of Walker v. Perkins there cited. 2 Johnstone v. Mackenzie's Executors, 4 Dec. 1835, 14 Sh. 106. 3 Bell's Commentaries, i. 299, and English cases there cited. 4 Duke of Hamilton v. Waring, 21 May 1816, F. C. 5 English case of Du Bost v. Beresford, Bell's Illustrations, i. p. 61. Gilbert v. Sykes, Bell's Illustrations, i. p. 62. 7 Poplet v. Stockdale, ibid. p. 62. 8 Roper on Legacies, White's edition. 9 Bell's Commentaries, i. 301. 10 Leith v. Blaikie, 25 Jan. 1853, 2 Stuart's Cases, 197. 11 Kidd v. Kidd, 10 December 1863, 2 Macph. 227. contra bonos mores. granting an additional provision; and (3.) When the condition is OBLIGATIONS imposed by third parties. Lord Kilkerran discusses the rules applicable to these cases, in his report of the case of Mackenzie; and holds that a bond by the father, in fulfilment of his natural obligation to provide for his children, would be exigible, if a suitable marriage should take place, although the consent of third parties to his child's marriage, stipulated for by the father, should not have been obtained;-but that the condition would be strictly construed, in the case of conditions imposed by third parties, or by the father, in reference to additional provisions, and stipulating for his own consent; which propositions are supported by the cases noted below.2 Such a condition was found not transgressed when not known to the party; in which case the irritancy was found not incurred. But ignorance of the condition was thought of no importance in Mackenzie's and effect was given to an absolute condition by a father, applicable to his daughter's marrying without his consent, though she had been privately married before the date of the bond. But, where the consent of third parties is the condition, such consent can be given effectually after, as well as before, the marriage,5 even although the clause shall in its terms require the consent to be first had and obtained. And the special form of giving consent pointed out in the deed of provision will not be insisted in, if there really is consent.7 Moreover, the refusal of third parties to give the consent, stipulated to be required of them, will not be effectual if they decline to give a reason for refusing; especially if the party refusing consent, and declining to give his reason, has a personal interest to refuse, as being debtor in the bond containing the provision. On the same principle of the Law's jealousy of all undue interference with marriage, marriage brokage contracts, that is, agreements or bonds for a premium to be given to a broker, or matchmaker, for his or her influence in bringing about a marriage (proxeneticum), are void. The decisions on that point are very numerous, and such contracts have never been sustained.10 Any stipulation which interferes with the natural exercise of the DOMESTIC domestic affections, and relative duties, is also looked upon very 1 Mackenzie v. Creditors of Kinminnity, 6 June 1750, M. 2977. 2 Dalziel v. Scotstarbet, 9 June 1687, M. 2971; Rae v. Glass, 17 Jan. 1673, M. 2966; Buchannan v. Laird of Buchannan, 13 Feb. 1680, M. 2968. 3 Laird of Fetterneer v. Semple, 3 Dec. 1680, M. 2969; Hamilton v. Hamilton, 13 Feb. 1681, M. 2970. 4 Hay v. Wood, 27 Nov. 1781, M. 2982. 5 Buntin v. Buchanan, 7 July 1710, M. 2972. RELATIONS. |