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In an action pursued by William Ker of Middlemistwalls contra John Home of Slaigdane, the Lords found that an assignation of a mutual contract, ad hunc finem, whilk the liferenter had subscribed the contract, relevant to be proved by witnesses inserted; and if the same were proved, found that either the said John Home of Slaigdane behoved to procure her subscription, or otherwise the said minute behoved to expire.
Fol. Dic. v. 2. p. 218. Kerse, MS. fol. 44.*** Haddington reports this case:
1611. January 17.—A Minute of contract of the alienation of the liferent of a wife, containing her own name and her husband's, and being only subscribed by the husband, bearing a clause of extension ay while all the parties be sure, it will not be found that the buyer will be sure unless the wife subscribe, and caution offered by her husband to warrant the cloke, will not supply that, because it is but a ground of an action, and no perfect security. A notary receiving in his hands an evident deposited and to be kept by him while diverse conditions be performed, if he deliver the writ to the party in whose favour it is made before the conditions be performed, and that thereby it be made the party's evident, albeit thereby the conditions of the consignation or the evidents cannot be proved against the haver of the evident but by his own oath, yet the said conditions may be proved against the notary by the witnesses inserted, and being proved, he will be condemned in the damage and interest of the party.
