Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Date: 2 February 1687
Francisca Cunningham, and - Johnston, her Husband, v. The Earl of Glencairn
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Francisca Cunningham and Johnston, her husband, pursue the Earl of Glencairn, on a minute of contract betwixt Chancellor Glencairn and Cunningham of Ballyachan. Against which the Earl had a declarator of nullity, 1mo, That it was an undelivered evident, lying S8 years in Porterfield of Deuchal the writer's hands, and produced by him in an exhibition. Answered,—It was a mutual contract, whereof there is only one double, and so neither could, nor needed to be delivered. Replied,—It bore registration, and so each might have got an extract; and it might have been made public by a process.
Next, alleged,—It contained a synallagma; and Captain Cunninghame not having fulfilled his part, the Earl was not bound; qui agit ex contractu reciproco debet prius docere omnia ex sua parte esse impleta. Answered,—Captain Cunningham's part was only the delivery of writs, and the minute in the end of it bears that he gave up a back-bond to the Earl.
Replied,—That cannot be the evidents meant in the first clause, which is conceived in the terms of a future obligement; and he either had such writs, or he had them not: if he had them, then he did not fulfil by delivering them; if he had them not, dolus dedit causam contractui.
The Lords, after a debate in presence, found Captain Cunningham's heirs could not seek implement of this minute of contract, in regard they had not performed their own part of it. Against this, a bill was given in, and refused.
Then Glencairn's oath was craved, if he had not those papers; and being offered, they resiled; so the Lords decerned.
