Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Mr John Bayneof Pitcarly v. Mr George Scot of Pittedy.
Date: 6 February 1672
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The Lords having advised the debate betwixt Mr. John Bayne of Pitcarly and Mr. George Scot of Pittedy, with the depositary, Mr. Robert Reull, his oath, they found the minute obligatory, and ordained the same to be given up by Reull to Pitcarly; notwithstanding it was alleged that the same was not a delivered evident, but only consigned till next meeting, at which time sundry things controverted betwixt them were to be communed on; so that it being an unconsummated bargain, there was locus pænitentiæ, likeas he did resile debito tempore; see Balmanno's practiques verbo Penalties, page 224, et seq.; as also, he offered to pay the penalty to be freed of the bargain, which penalty was 4000 merks; which the Lords repelled, as being over and above the performance. See it so decided on the 5th of March, 1634, Murray against Lord Blantyre; March 19, 1630, Crichton. But in regard, it was controverted betwixt them, whether Pitcarly should take, in part of the price, a bond of 20,000 merks, granted to Mr. George, by William Calderwood, who acquired the lands of Pittedy, seeing the same was clogged and affected with sundry conditions, and expressly that William Calderwood should retain it ay and while the lands of Pittedy were disburdened of the incumbrances condescended on, which are not yet purged; the Lords recommended to two of their number to consider how the said bond might be made effectual to Pitcarly, so that he might accept it in part of the price of his lands. See the information of it beside me.
