Found competent to abide by a deed under this qualification, that although not signed of the date, and before the witnesses, it was truly subscribed.
Click here to view a pdf copy of this documet : PDF Copy
John Winram, cautioner in the contract of marriage betwixt umquhile Mr Robert Winram and Grizel Anderson, relict of umquhile Mr William Coupar, Bishop of Galloway, pursues the said Grizel for improbation of the said contract. The defender declares that she will abide to the verity of the subscription of the said contract before no witnesses, and that she and the cautioner subscribed the same before the witnesses inserted in the contract. It was contended by the pursuer, that her declaration in this kind would not be reserved, because it prejudged the pursuer of his direct form of improbation.——The Lords found that she might declare how she would abide the verity of the contract.
Auchinleck, MS. p. 96.* * * Durie reports the same case:
One Winram pursues the relict of Mr Robert Winram for improving of their contract of marriage. The Lords found, That albeit the contract was subscribed by the husband, and a cautioner for him, and bore only one date, and before the same witnesses; yet that the relict, who was pursued for improbation by her husband's heir, and the cautioners might declare, that she would not abide by the contract as subscribed by the principal and the cautioner, at the day therein inserted, and subscribed before these witnesses; but declared she abode thereat as truly subscribed by her husband, and written all in the body with his own hand, there being no witnesses present at his subscription, and that the cautioner subscribed thereafter before these witnesses insert; whereby she alleged, That except the pursuer would improve the contract otherwise than because it was not subscribed at the date therein, and before these witnesses, as witnesses to both parties subscriptions, they could not improve the same.—— The Lords found, That the party might make the foresaid declaration; and found, that except the pursuers would improve the same contract otherwise than in the date, because it was not subscribed on that day, and before these witnesses, (which they found to be no argument against the contract of marriage, whereon marriage had followed, and bairns procreated,) that it ought not to improve the same.
Act. Stuart & Craig.Alt. Nicolson & Lawtie.Clerk, Hay.
Durie, p. 473.
