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Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Jack v. Jack
1672.
July.
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In an action, Jack against Jack, a father having given a moderate bond of provision to his three younger children, the same was quarrelled upon this ground, that it was subscribed by two notaries, only before three witnesses.
The Lords found the bond null. And when the parties were content to restrict it to L.100, for which one notary and two witnesses were sufficient; the Lords refused the same, because they found it wholly null, et quod contra legem, seu formam juris fit ipso jure nullum est.
This seems contrary to their very frequent practice, by which they ever allowed restriction to the sum of L.100, conform to that axiom of the law, utile per inutile non vitiatur. See Dury, 19 December 1629, Elliot against Morton, where the Lords resolve in all time coming to permit the parties to retrench their bonds. Vide infra, No. 398, [Deans, June 1673.] This decision agrees with the French arreists; Mornacius in observationibus ad l. 29 D. de legibus, Quia salvis legis verbis ejus mentem circumvenire non licet. See Mornacius also ad l. 38 D. de pactis.
