Subject_1 LOCUS POENITENTIAE. Subject_2 SECT. III.
What writing sufficient to bar Locus Pćnitentić. - Ubi res not est integra. - Rei interventus. - Oath. - An informal writing does not bar Locus Pćnitentić. - Promise to ratify an informal writing bars Locus Pćnitentić.
Thomson v. Thomson
Date: 5 December 1699 Case No. No 34.
A man attempted to resile from a bargain of a house, after he had entered to possession. Found obliged to implement, although no writ had intervened.
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William Thomson flesher in Kelso, pursues James Thomson merchant there, before the Bailie of Kelso, for payment of the price of a tenement he had sold him. James advocates the cause, on this reason, that the Bailie had committed iniquity in repelling this defence, that the bargain not being consummate by writ, there was locus pænitentiæ, and he now resiles. Answered, It was justly repelled, in respect of this answer, that, in prosecution of the bargain, you had got the hail writs and evidents of the land, and the keys of the houses, and had entered into possession, and now kept it for a year and a half; as also, by virtue thereof, had entered into a transaction with the heritor of the neighbouring tenement for building a side wall thereto, which making a plain rei interventus, there is no more place for resiling; especially considering, that the delivery of the charter chest of Auchinleck of Balmanno to Sir Thomas Murray of Glendoick, was found a sufficient ground, by a late interlocutor, to examine the communers anent the eases, though there was no writ. The other party founded on decisions in Durie, 5th March 1628, M'Gill, voce Writ; and the 5th of December 1628, Oliphant, No 7. p. 8400; and Stair, Montgomery of Skelmorly, No 25. p. 8411. where parties were allowed to resile, though some things were done in contemplation of the bargain, these being restored, and the parties redintegrate in statu quo prius.—The Lords here thought res non erat integra by the condescendence made, and that the Bailie had committed no iniquity, and were therefore for remitting it back. Some thought there was no such rei interventus here, but what could be easily passed from, by giving back the writs and keys, and purging the house of the servitude imposed; and which fell of itself as null, being constitute by one who had no right.
Fol. Dic. v. 1. p. 563. Fountainhall, v. 2. p. 70.
