Writs defective in Solemnities, Whether capable of Support, so as to furnish Action?
Muir v. Crawford
Date: 11 March 1628 Case No. No. 284.
A marriage-contract, informally executed by notaries, was sustained, as marriage followed.
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In a suspension by Muir against Crawford, of a decreet of transferring of a registrated contract against his father, and transferred in him as heir to his father, by the which contract his father was obliged to pay to Crawford 200 merks for tocher good, obliged to be paid by the said umquhile Muir to the charger, in marriage with one Cunningham, who was sister to Muir's wife, and which was suspended by Muir's heir, in whom as said is, it was transferred, because it being a matter of importance, viz. 200 merks, it was only subscribed by a notary for him, before two witnesses; and the charger opponed his decreet standing, and also that it was a contract of marriage, whereupon marriage followed;—the Lords found the letters orderly proceeded, notwithstanding of that reason, seeing it was a contract of marriage, for payment of tocher, whereupon marriage followed; and had no respect to the suspender's reply, whereby he replied, that he was not obliged in law to the woman contracted, to tocher her, being a stranger to her, she being only his wife's sister, whom no law could compel him to tocher; and therefore he alleged, that the form prescribed by the act of Parliament, in anno 1579, concerning two notaries and four witnesses, should be kept; which allegeance was repelled, but the reason in this case especially was, because the contract was first registrated against the defunct in his own life-time, and thereafter was transferred in this suspender, as heir to him, and so there were two decreets thereon standing. Vide December 10, 1630, Nisbet against Newlands, No. 287. p. 17016.
Clerk, Hay.
Durie, p. 357.Spottiswood reports this case:
David Crawford having got a decreet of transferring against Gilbert Muir as heir to his father, who was obliged in a contract of marriage between the pursuer and Elizabeth Cunningham, for the payment of 200 merks charged upon the said decreet, Gilbert suspended upon this reason, That the contract was null, in so far as his umquhile father was obliged therein, because he was not subscribing in it, and only one notary and two witnesses, and so null by the act of Parliament. Answered, That ought to be repelled, 1mo, In respect of the decreet standing, given upon lawful probation; 2do, It floweth upon a contract of marriage, which is an onerous cause, in respect whereof the strictness of that solemnity ought to be dispensed with. Replied, That his father being but a stranger to the parties, the defect alleged should work in his favours, he having received no benefit by the said contract. The Lords found the letters orderly proceeded.
