Scottish Court of Session Decisions

Subject_1 PACTUM ILLICITUM.
Subject_2 SECT. V.

Bond granted Causa Adulterii.

Durham
v.
Blackwood

Date: 20 July 1622
Case No. No 19.

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The Lords found a bond of 5000 merks given by the Laird of Blackwood to Helenor Durham, daughter to Sir James Durham, and to Weir, daughter procreated in adultery betwixt the pursuer and defender, to be null, by way of exception, as given ob turpem causam adulterii.

Fol. Dic. v. 2. p. 21. Haddington, MS. No 2654. *** Kerse reports this case.

Bond made by the adulterer to the adultress, and bairns gotten betwixt them, found null ipso jure, and ordained to be riven.

Kerse, MS. fol. 46. *** This case is also reported by Durie.

Weir of Blackwood being married upon a daughter of the Lord Elphingston. in the time of his marriage begets a bairn upon Helenor Durham, daughter to Sir James Durham, and, after the birth of the bairn, gave a bond to the mother, to provide that bairn to a certain sum; which bond being desired to be registered by the woman against the maker, the Lords found, that it ought not to be registered, and that it could produce no manner of action, neither in favour nor at the instance of the woman, nor at the instance of the bairn, in whose favour it was conceived; seeing it was a writ given for reward of adultery, albeit that cause was not therein expressed; for it was given to one begotten in an adulterous conjunction, which was not allowable; and, therefore, the Lords found that it was null, and could not produce action at no person's instance, being given ob turpem causam, albeit the cause of the turpitude preceded the giving of the bond; for it was alike, being præmium adulterii et turpitudinis.

Act. Stuart & Hamilton. Alt. Hope. Clerk, Scot. Durie, p. 31.