Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Nicholas Dunbar and Sir Charles Hay of Park v. Macdouall of Freugh
Date: 29 January 1702
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Nicholas Dunbar, daughter to Mochrum, and relict of Baillie of Dunraggat, and Sir Charles Hay of Park, her assignee, pursue Macdouall of Freugh on the passive titles, on this ground, That his father is burden-taker for her husband, in their contract of marriage, to procure her infeft in her jointure-lands therein mentioned, in respect her husband was then minor, and Freugh was one of his curators; and therefore, her husband's estate being now evicted by creditors, and she not infeft, that he may be liable.
Alleged,—This contract consists of two sheets of paper; and though Freugh signs the last sheet at the bottom, yet he has not sidescribed the margin at the juncture of the two sheets; and therefore, his father's obligement to see lier infeft being in the first sheet, it cannot be obligatory; especially considering that there is nothing in all the second sheet that looks as burden-taker, but allenarly his pure consent as a curator; so there may be suspicion that the first sheet has been loosed, written over again, and altered.
Answered,—The statute law of this kingdom speaks of nothing but subscribing; and sidescribing is only introduced by custom, which was not so universal and uniform at the time this contract was made; and our decisions do not require it, as appears, June 28, 1673, Arnot against Scot; and 14th January 1674, Ogilvie against the Earl of Findlater, where a cautioner was found bound, though he had not subscribed the juncture at the margins.
Replied,—The disparity is obvious; for the last sheet bore a clause of relief by the principal to him, which necessarily inferred his being cautioner; whereas, here, the clauses in the last sheet give neither light nor clearing as to those m the first.
The Lords doubted much what to make of it; but, remembering there are commonly two doubles of contracts matrimonial, they granted Freugh a diligence for recovery of the other principal, to the effect they might see if there was any discrepancy betwixt them, from comparing them together.
At last, the Lords, on sundry specialties convincing them that there was no alteration in the first sheet, repelled the nullity of not sidescribing in this case.
