Consent not presumed, when the Deed can be ascribed to another Cause.
Campbell v. Campbell
Date: 15 December 1664 Case No. No 62.
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By contract of marriage betwixt Alexander Campbell and Janet Campbell, the deceased Alexander as principal, and certain persons as cautioners for him, are obliged to pay to the said Janet yearly the sum of L. 80, whereupon she intents action against the cautioners for payment.—It was alleged, That the contract quoad the cautioners is null, being only subscribed by one notary.—Answered, That marriage having followed, it homologates the contract, and supplies the defect of two notaries.—Replied, That the subsequent marriage might supply the defect of a necessary solemnity, quoad the principal party contractor, but not quoad the cautioner; and for this some old practiques were alleged.
The Lords found the contract null, quoad the cautioners. See Writ.
Fol. Dic. v. 1. p. 382. Gilmour, No 119. p. 87.*** Newbyth reports the same case:
Janet Campbell, relict of umquhile Alexander Campbell, pursues Dougall M'Cullen, and several other persons as representing their fathers, who were cautioners for the said umquhile Alexander Campbell, for a provision to his wife.—It was alleged no process, because the sums due being L. 80 yearly, the contract of marriage by which the cautioners were bound, was subscribed only by one notary, and so quoad the cautioners, the contract was null upon the act of Parliament.——The Lords found no process, and found, That albeit the contract of marriage was valid quoad the parties contracted themselves, yet quoad the cautioners, the same not being subscribed by two notaries, was null.
1665. January 4.—In the same cause Campbell contra M'Cullen, it was farther alleged, That the pursuer offered him to prove that the defuncts gave warrant to two notaries to subscribe for them.——The Lords likewise repelled that allegeance, in respect of the act of Parliament; and found it not relevant that the pursuer should prove per testes insertos, that the defenders gave command to a single notary to subscribe for them.
