Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Sir William Stuart of Castlemilk v. The Duke and Duchess of Hamilton
Date: 5 February 1702
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Sir William Stuart of Castlemilk pursues for maills and duties of the lands of Coats, formerly belonging to Minto.
Alleged, For the Duke and Duchess of Hamilton,—Absolvitor, because there was a communing which came to a final agreement. Sir William was to dispone these lands to the Duke and Duchess on certain conditions of paying a price and alimenting the former heritor, which was accordingly done.
Answered,—This being a bargain of lands, it required writ to its solemnity and perfection, till which was adhibited there was locus pwnitentiœ; and he now resiles. And for any performance made, it was not to Castlemilk, but to Stuart of Minto, and was not in contemplation or prosecution of this bargain; but the Duchess had been in use to aliment Minto before that, and so can never be ascribed to the bargain. And communings were ever ambulatory till they were fixed in writ; as has been found by a tract of decisions, 5th December 1C2S, Oliphant against Monorgan; 29th January 1630, Laurie against Keir; 16th July 1636, Keith against Tenants; 15th July 1637, Skene; and 28th January 1663, Montgomery against Brown; and sicklike in 1685: in all which cases place was found for resiling.
Replied,—That is true where there is not rei intervenías, and something done in implement of the bargain; for then res non est amplias integra, and so cessat locus pœnitentiœ; as was found 1st December 1671, Gordon against Pitsligo.
Duplied,—Pitsligo's case was only a simple promise to enter a vassal gratis, which differs far from emption, vendition, and other mutual contracts, where each party is to perform something hinc inde; and though one has performed their part, yet that does not tie the other to observance till writ has intervened; only they must restore what they have got.
The Lords finding the bargain was referred to Castlemilk's oath, they ordained him to depone anent the terms, before they should determine the relevancy, whether there was such a rei mterventus here as hindered him from resiling though there was no writ upon it.
