Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 WRIT-LOCUS PCENITENTL/E.
Subject_3 A Writing, neither in terms of the Act 1681, c. 5, nor holograph, insufficient to constitute a bargain as to heritage, though the subscription was acknowledged.

Alexander Muir
v.
James Wallace

Date: 14 February 1770

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[Faculty Collection, V. p. 60; Dictionary, 8457.]

Coalston. I doubt how far the aknowledgment of the subscription is not sufficient to remove the objection of a statutory nullity. Solemnities were required for preventing forgery, and, when the subscription is acknowledged, that reason of the statute ceases.

President. The contrary was found in the case of M'Kenzie and Park, very deliberately determined. When land is to be conveyed, it is expedient to adhere to our feudal rules.

Hailes. I have good reason to remember the case of M'Kenzie against Park. I was lawyer in it on the losing side. I observe some commendations bestowed on a paper signed by me in that cause. I do not deserve it; for the paper was not composed by me, but by a person whom I am not at liberty to name, [1ord Kaimes). At the time, I own I did not digest the decision; but it has been uniformly followed, and I consider it as a safe rule.

Monboddo. If it is once admitted that an heritable subject may be conveyed by the form of missives, I cannot dissinguish between a missive holograph and one where subscription is acknowledged. This was a solemn transaction, and it is no modest or ingenuous plea which the defender urges. As to this point, there are decisions, old and new, which run contrary. I therefore find myself at liberty to determine according to principles.

Pitfour. If we allow the solemnities of writ to be given up, we defeat the security of the law. The frequency of disputes like the present leads me to be more studious to support the law, otherwise we should sap the foundations of legal securities. Our ancestors, when writing was less common, subsisted well with all legal solemnities; why may not we, when writing is become more common, and instrumentary witnesses may always he had? There are only two cases where this solemnity is dispensed with,—where fraud can be alleged, or where there is rei interventus.

Kennet. The law admits locus pænitentiæ till a written obligation is completed. So, the acknowledging a subscription is not sufficient, but leaves matters just where they were.

Kaimes. I am tired with opposing a number of decisions which I think totally wrong. Were those decisions limited to land-rights, it would be less matter: if they are extended to every case, they will destroy the morals of the nation. It is an infamous plea for a man to urge the force of a statute contra bonos mores: How can a Court of Justice, established by the public, ever give sanction to so unjust a defence?

Pitfour. If, by the law, a bargain cannot be established without a writ, there is no reason for disappointing the law, in order to establish a bargain. In some cases the law allows a locus pænitentiæ, that a man may be freed from a rash obligation, but which still may be an obligation in conscience.

Justice-Clerk. Were we to consider this case without reference to statutes and decisions, we would certainly determine according to the rules of good faith. We have often the mortification to be obliged to give decreet where the plea or the defence is ungracious and against good faith. This decision will not affect moveables: it relates only to the conveyance of heritable subjects, or to an obligation to convey, which is equivalent. A long tack of lands is an heritable right. An adjudication of it is an heritable title. I cannot distinguish between a large subject and a small one; between recent adjudication and one whereof the legal is near expired.

Auchinleck. Were the question concerning a moveable subject, I should have no difficulty in determining the letter to be binding. Here a man comes against his own agreement; but, suppose there were a formal verbal agreement, this is as binding in the conscience of an honest man;—and yet we would not hesitate to say there is locus pænitentiæ, although this is equally against conscience. Here the defender takes advantage of the law of the country. This is not more revolting against conscience than the other, which is equally founded on the law of the country.

Coalston. Put a case.—A deed signed before witnesses is not good unless duly tested. A man grants a disposition of his lands,—it bears payment of a price,—I pursue for delivery: The party says,—The deed is null, for one of the witnesses did not see me sign. Would this defence be sustained?

President. In that case there might be a rei interventus; besides, it may be urged, non deficit jus sed probatio. The case which has occurred, will occur seldomer if we hold by the decisions.

Elliock. When this case was before me, I did not consider it as relating to a subject of much importance; being as I imagined, the adjudication of a tack which might expire to-morrow.

On the 15th February 1770, “In respect that the missive relates to an heritable subject, the Lords found it not probative;” altering Lord Elliock's interlocutor.

Act. J. Boswell. Alt. A. Lockhart.

Diss. Kaimes, Coalston, Monboddo.