Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 LOCUS PŒNITENTIÆ.
Subject_3 Neilson, by a missive, not holograph, became bound to enter into a Tack with Maitland, containing all the usual clauses; and a counter missive, agreeing to that proposal, was signed by Maitland, though not holograph of him. A scroll of the Lease was made out, but they differed on some articles, and Maitland did not obtain possession. In a pursuit against Neilson by Maitland, to implement and sign the Tack, the Lords held the missive not probative, though Maitland acknowledged his subscription; and found that, as it was covenanted there should be a Tack in writing, there was still a Locus Poenitentia.

Charles Maitland
v.
John Neilson

Date: 29 July 1779

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[Fol. Dict. III. 395; Dict. 8459.]

Braxfield. The writing by which this bargain is constituted is informal: the subscription is not denied; but that is not enough in this case. It is enough when writing is only necessary in modum probationis, but not so when writing is necessary to the constitution of the obligation. Here there is a tack for a number of years:—a tack for more than one year is not valid without writing. It is said, “I must at least have a tack for one year.” The answer is, “No: for it was specially covenanted that there should be writing; and until writing was adhibited, the bargain remained incomplete.”

Covington. A tack for one year was contrary to the intention of both parties: the ground was waste, and therefore no profit could have arisen from one year's possession.

Kaimes. Where there is an express agreement to reduce a bargain into writing, the bargain is not completed until a formal writing is made out.

Monboddo. If a subscription is once acknowledged, there is no danger of forgery, and consequently no occasion for witnesses.

Hailes. The observation contradicts what the Lords found in the noted case, M'Kenzie against Park, and in various cases decided since that time, on the principles then established.

President. This case shows the necessity of adhering to forms. When people do things in a hurry, they leave clauses to be hereafter adjusted by courts of law; not so when a formal writing is coolly and deliberately executed.

On the 29th July 1779, “The Lords assoilyied altering Lord Covington's interlocutor.

Act. A. Rolland. Alt. G. B. Hepburn.