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.
Joseph Young, Merchant in Edinburgh v. Henry Nisbet of Dean
Date: 13 December 1710 Case No. No 38.
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Joseph Young having charged the Laird of Dean, upon a decreet obtained against him before the Sheriffs of Edinburgh, to make payment to Joseph, of L. 147:14:9d.; Dean suspended upon this ground, that L. 106 must be deducted, for which he had got credit from the charger by his missive letter dated in May 1706, bearing, That there remained L. 57:10s. of balance of the sum contained in the decreet due by the suspender, after giving him credit for all that was paid by him to the charger, and taking off L. 106 due to the suspender by Captain Richardson; and that the charger intreated the suspender to pay the said balance, and let him have Captain Richardson's papers with a right thereto. Upon which the suspender, 22d September last, offered these papers to the charger, with a right thereto under form of instrument; which instrument bears, that the charger acknowledged the suspender's having made suchan offer in due time.
Replied for the charger; He had good reason to refuse to accept a right to Captain Richardson's debt 22d September last; his circumstances being then far altered to the worse from what they were at the date of the charger's letter. And where a right is to be perfected in writ, there is a locus pænitentiæ, till the terms be agreed on, and the writ extended, subscribed and delivered; 2do, The instrument taken by the suspender cannot prove that prior and timeous offers were made of the papers, and a right thereto; seeing the assertion of a notary cannot prove the emission of words or expressions at that time, far less what past at other times, before which he had no warrant to assert, but the suspender's telling him it was so.
Duplied for the suspender; Albeit in verbal communings, requiring to be perfected in writ, either party is allowed to resile, till that be done; yet here the suspender's granting a right by translation of Smeaton's debt, and Mr Young's accepting thereof by his subsequent missive letter, did fully complete the bargain, and exclude all pretence of resiling; 2do, Though in competition of heritable rights, sasine (without the warrant thereof produced) is not sustained; yet in this case, where there is a protestation by one party against another, about something to be done by either, the notary by his office is common trustee for both, and obliged faithfully to insert in his instrument what is required by the one, and the other's answer thereto; and to furnish both with extracts when required.
The Lords found, that the suspender having subscribed a right of Smeaton's debt to the charger, and he having accepted thereof by his missive letter, there was no locus pænitentiæ, and found the letters orderly proceeded only for the balance of L. 57:10s.; the suspender always proving by the notary and instrumentary witnesses, that the charger had acknowledged by his answer to the suspender's protest, that the offer of Captain Richardson's papers, and a right thereto, was made debito tempore.
