Where Writ is not necessary. - Where a Bargain is agreed to be perfected in writing. - Locus pćnitentić after Writ is interposed. - Where the Right to be granted is disputable. - Verbal Bargain for a Lease
Grahame and Erskine v. Burn
Date: 2 January 1685 Case No. No 66.
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A tenant of my Lord Panmuir's enters into a contract of marriage with a woman called———, under a penalty; and afterwards he deserts the bargain, and refuses to accomplish if. She pursues him for the 200 merks of penalty, at least for damage and interest, in so far as she was put to expense in entertaining his friends, and taking off bridal cloaths, &c.—— The Lords, though they found matrimonia debent esse libera, and that there is locus pænitentiæ; yet, under that pretence, one ought not to be damnified, therefore they admitted her expense to probation; and she having proved, that she was put to L. 80 Scots of charges eo nomine, the Lords, at the advising for that expense, and for her loss of the market, modified L. 100 against him, in regard especially that he could give no rational ground why he gave over the bargain. This decision seems equitable, though it be new.
Fol. Dic. v. 1. p. 565. Fountainhall, v. 1. p. 328.
