Found in conformity with Aiton against Paterson, No 3. p. 10034.
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By a minute of contract subscribed betwixt these parties, the Lord Blantyre sells the lands of Calderhall, &c. to Ronald Murray, for a sum, and the parties agree that a contract be extended thereon, and if they fail, the failer to pay 2000 merks; which minute being desired to be registered that execution might pass thereon; the defender alleged, That, seeing the minute was never perfected, and that the same resolved in a failzie of 2000 merks, and that the party had no interest by the not-perfecting thereof; therefore, he alleged, That it could not be registered, seeing it was factum impræstabile to give him security of the lands, which he had sold since to another, being certified that this pursuer had refused the bargain, and he had neither debursed arles nor money; so that uihil illi deerat, and he was instantly content to offer and satisfy all his damage and interest, and which now ought to be received, seeing the minute was desired to be registered, not for extention, but for execution; and this offer was competent against the execution.—The Lords repelled the allegeance, and found, that the adjection of the penalty in the minute resolved not the contract, so that the same was appointed to come in place of the perfecting of the minute; but, notwithstanding of the said penalty, the parties might also seek implement of the minute, and whole articles thereof, beside and attour the said failzie: And they repelled the offer of the interest in this place against the registration, without prejudice of the same to be received, and discussed by way of suspension.
Act. Advocatus & Mowat.Alt. Stuart & Lermont.Clerk, Hay.
Fol. Dic. v. 2. p. 54. Durie, p. 708.
