Summary diligence at the instance of a third party in whose favour a stipulation is conceived. See No. 5.
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In a suspension of charges raised by one Eiston, upon a contract of marriage, betwixt the suspender, James Shanks, on the one part, and umquhile Marion Wilson, on the other part, by the which contract he was obliged to infeft his spouse, in her life-rent, of all lands and money to be conquested by him, and to provide her lawfully thereto, and, after her decease, the one half thereof should pertain to his heirs, and the other half to Janet and Marion Eistons, daughters to the wife of a prior marriage; whereupon the said daughters, after their mother's decease, having caused register the said contract, by the compearance of a procurator for the husband surviving, and they having thereupon charged him to fulfil the contract, in the special heads condescended upon by them, anent the infefting of them in the half of a tenement of land conquested by him at the time of the said marriage; the Lords found, That this contract could not be registered after the wife's decease, in this manner, viz. by a procurator's consent for the husband, and consequently that such summary charges could not be raised thereupon, at the instance of those in whose favours the said clause of the contract was conceived, they being neither contractors nor subscribers of the contract, and the contract not being registered betwixt the parties who were direct contractors, in their own life-time, but only registered by this third party, after the decease of the wife; which was sustained, and the reason of suspension thereupon found relevant, notwithstanding that the contract was registered as said is.
Act. Nairn.Clerk, Gibson.
Fol. Dic. v. 2. p. 404. Durie, p. 742.
