Morte Mandantis cessat Mandatum; unless the Mandate be in rem alienam.
Ramsay v. Executors of Lady Cull
Date: 6 May 1581 Case No. No 1.
In the case of a contract, blank in the sum, to be filled up by a third party with what sum he thought fit, the Lords found, that tho' this was not done in his lifetime, yet, if he gave orders for another to do it, that was sufficient, notwithstanding of the rule, mortuo mandante cessat mandatum.
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James ramsay, son and aire to umquhil Mr David Ramsay, pursued for in the cancellation of ane perfect contract, made betwixt the said umquhil Mr David, taking the burden upon him for his wife and bairns, on the one part, and umquhil K. Lady Cull, and James Crichton of D. her spouse, for his interest, and thereupon summoned the executor of Lady Cull and Mr David —— her spouse, for his interest. Amongst other allegeances made in writ against the cancellation of the said contract, it was alleged, that the said contract ought to be cancelled as an imperfect evident, and that tuik na effect; because the twa wives of Mr David —— and ——, were principal contractors in the said contract, and their husbands but for their interests, and the said wives and Ladies had not subscribed the said contract, nor no verification thereof made in their name. To this was answered, That, in so far as the husbands had subscribed the same, it was sufficient for the wives' part without their subscription, quia maritus est dominus bonorum mobilium de jure Scotiæ To this was answered, That there was renunciation of rights, tacks, and actions, and acceptation of assignation and discharges hinc inde, et fuerunt jura, actions, et nomina debitorum, the whilk principally appertained to the wives, and therefore the consent behoved to be interponed.—The Lords repelled allegeance and reply made by Ramsay; and fand, that the subscriptions of the husbands were sufficient, without the subscriptions of the wife. See Husband and Wife.
In the action and cause foresaid, it was alleged be James Ramsay, That the contract should be cancelled and destroyed, because it should have been filled up in ane blank part of the same, whereuntill the soume of silver was to be put be umquhil the Earl of Murray Regent, and the same not being filled in his lifetime, could not be now filled, quia mortuo mandatore expirat mandatum. To this was answered, That the contract was made with the advice, consent, and assistance of the said Earl, prout verba in contractu sonabant; and the defender offered him to prove, that the said Earl, before his decease, gave command to Mr John Wood, his secretar, to fill up the same blank, with the soume of 300 merks. To this was answered, That the allegeance was not relevant, except they wald allege that the said Earl had power to do the same, whilk was not contained and expressed in the blank.——The Lords admitted the Earl's command to be proven per scripturam. Ego tamen fui singularis in opinione mea, that the said blank could not be filled up after the decease of the said Earl, nullo modo, quia electa fuit industria personæ in predicto Comite; et mortuo mandatore expirabat mandatum; et mandati sunt observandi diligenter in forma specifica, de qua vide L. C. mandati et ibidem Cartol. et vide etiam glossam in cap. ad agendum in sexto ibidem.
