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In an action betwixt James Maxwell and L. Innerweek, for declaring of a reversion of lands to be expired, upon a clause irritant, conform to the contract betwixt the parties, seeing conform thereto the defender being required to provide and pay the moneys, as was appointed in the contract, he had not done the same, the Lords assoilzied from this declarator, in respect the requisition made to pay the moneys was made by a procurator constituted by the pursuer, who required payment to be made to James Maxwell, at a term at which he was not within the country, and the defender was not obliged to pay the same out of the country; and albeit the procurator had power to receive the money, yet seeing he required not the payment to be made to himself, as having power, but to the constituent's self, who was absent as said is; and also in respest that the procurator designed no place, where he desired the defender to make payment, so that it was uncertain to him where to pay the moneys there being no place in the contract Resigned for payment; and that the instrument of requisition bore not, that the procurator shewed and delivered his procuratory to the notary, to the effect the notary might read the same to the party; for albeit that the instrument bore, thet the notary read the same procuratory to the party, these words were eiked upon the margin of the instrument since the same was produced by the party, without any clause making mention of the reading of the procuratory, and whereby he alleged, that it could be sustained; and although the same might be received, as it is now mended, be alleged it was not sufficient, not purporting that the procuratory was delivered to him as notary, to be read by him, as ought to have been done; for the reading thereof by the notary himself, without the procurator's own direction, was not an act of his office, but was only proper to the procurator to have desired it, and upon his desire the notary ought to have done it, and to give instruments thereon; and it is not his office to be notary to his own deed, but in so far as he has the preceding, warrant of the requirer; as in sasines, the notary reads the precept at the desire of the party, and the instrument makes mention thereof, and sicklike in other acts; in respect of all which conjoined, the requisition was not sustained.
Act. Hope et Nicolson.Alt. Aiton et Sluart.Clerk, Scot.
Fol. Dic. v. 2. p. 322. Durie, p. 341.
