[1748] 1 Elchies 305
Subject_1 MUTUAL CONTRACT.
Armstrong
v.
Johnston
1748 ,July 16 .
Case No.No. 25.
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In a contract of marriage betwixt this Johnston and one Armstrong, Christopher Armstrong, the bride's brother, and another Christopher Armstrong, became bound for L.10 sterling of tocher; and the husband was to be bound, in case of the wife's survivance, to pay her L.10 sterling, and proposed one George Johnston to be cautioner, who was not present. The contract was accordingly written put, and signed by all parties except George Johnston, the husband's cautioner, and was left in the writer's hand to get it signed by him, and till he got payment of his own dues,—and the marriage went on:—This was in 1732, and the intended cautioner, George Johnston, is now dead, without signing. The husband had paid the writer, and got up the contract, and charged Armstrong, who is bound for the tocher, who suspended. Strichen, Ordinary, took the writer's oath as a depositar, and the fact came out as above. The reason of suspension was, that the contract was imperfect, and he not bound, because George Johnston, the husband's cautioner, had not signed. Strichen found the letters orderly proceeded, the husband finding new caution to the wife. On a reclaiming bill, when sundry precedents were quoted, Arniston (in the chair) greatly doubted of the interlocutor. However, in respect marriage had followed, whereby the wife dispensed with George Johnston's subscribing, and that the suspender had no interest in it, therefore we adhered, and refused the petition.
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