A requisition was sustained, which bore, that the defender was desired to come and treat with the party offered.
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In a pursuit at the Earl of Rothes's instance against Balfour, for the avail of his marriage, single and double, the Lords found, that, albeit the premonition made to the vassal, to come and treat, and to marry, bore not that the procuratory was then shown to the vassal; yet that the same was sufficient, and sustained the same, both for the single and double avail; for nothing was then shown to declare, that the defender doubted of the procuratory, or desired then to see it. Item, They sustained requisition, bearing, that the defender was desired to come and treat with the party offered, albeit it bore no special day, against, or at the which he was required to come and treat, seeing he was desired to come and treat before the marriage, and the day against which he was desired to come and marry was special in the instrument; which day the Lords found the superior and his procurator might appoint to the vassal to come and accomplish the marriage, and that he needed not to require the vassal to appoint the day; and upon his refusal, that then, eo casu, the procurator for the superior might appoint the same, but the superior and his procurator might appoint the day to the vassal themselves; and found it not necessary that the party offered should have declared, at the day prefixed for the marriage, that she was then content to marry the vassal; neither needed the instrument to purport the same, the same bearing, that she was then present in the Church to have completed the marriage; and also the Lords found, that, albeit the vassal was not yet married, yet that they would decern for the double; but superseded the execution for the double, until the same should fall by the vassal's marriage; for, so long as he remained unmarried, there was no contempt done to the superior; and so, in the mean time, no execution could pass for the said double.
Act. Aiton & Stuart.Alt. Nicolson.Clerk, Gibson.
Fol. Dic. v. 1. p. 567. & 568. Durie, p. 286.*** Spottiswood reports this case:
In the action pursued by the Earl of Rothes against Balfour, for the single and double avail of his marriage, it was found by the Lords, that it was not necessary to the procurator constituted by the pursuer to require the defender to accept of the party offered, to show his procuratory at the time of the making of the requisition, except the defender had required a sight of it.
