Lands were let verbally. The tenant did not enter, though the master built barns, &c. for him. He was not bound to perform, but was liable for an agreed penalty to be proved by his oath.
Click here to view a pdf copy of this documet : PDF Copy
Mr Andrew Skeen of Halyards, pursues————,for entry to the lands of————,which were set by him to the said tenant, conform to an appointment faithfully accorded, and convened fully upon, betwixt them, whereby the said Mr Andrew set the lands to the said tenant, for the space of years, for payment of such a duty condescended on in the summons, at the which time the said tenant promised, that if he entered not to the lands, conform to the said agreement, that then he faithfully promised to pay a year's duty for the said lands, and therefore pursued him to enter and keep the bargain, which he referred to his oath. And the defender alleging, That there was place of repentance; likeas immediately after the conference concerning the said bargain, he gave it over, and declared that he could not stand to the same, which he did, and might have passed from that conference, seeing nothing had followed further thereupon; and the pursuer sustained no prejudice, the conference being had about Whitsunday last, at which time the ground was laboured by the tenant indweller therein; and before the crop be separated, he had, and has sufficient time to provide for another tenant;——The Lords found, That there was place for repentance to the tenant to quit the bargain rebus integris, and that he could not be compelled to keep the condition libelled, to have been agreed upon, for entry to the ground, and labouring the same during the alleged space convened upon; and they found, That albeit the pursuer had bigged barns and byres to the tenant, for his use of labouring, that yet there was no prejudice to the master, seeing they would serve for any other tenant that should enter; neither was it a considerable prejudice, that the tenant entered not at Whitsunday to the grass, as the defender would have inferred. But because the pursuer restricted his summons to the fulfilling of that part of the alternative, alleged condescended upon, viz. either to enter to the land, and keep the tack agreed upon, or else to pay him a year's duty of the land, if he entered not;——The Lords sustained that part, viz. for payment of the said years duty, if he liked not to enter to the land; for the which the Lords found, That the defender could not be heard to resile and pass from that promise, if the same was proven; and therefore the Lords sustained the action therefor, to be proven by defender's oath, whereanent the Lords found the defender had no place of repentance.——See Penalty.
Clerk, Gibson.
Fol. Dic. v. 1. p. 560. Durie, p. 852.
