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.
Alexander Muir Gardener in Canongate, Pursuer; v. James Wallace of Wallacetown, Defender
Date: 16 February 1770 Case No. No 49.
A writing, neither in terms of the act 1681, c. 5, no holograph, insufficient to constitute a bargain as to heritage, though the subscription was acknowledged.
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Wallace, by a missive subscribed by him, but neither holograph having witness subscribing, nor any other solemnity, having agreed to sell to Muir an adjudication of a tack, Muir brought an action concluding for implement, by granting a complete conveyance to the subject. Wallace acknowledged his subscription, but pleaded, that as the agreement related to heritage, and had none of the solemnities required by law, nor was holograph, he was at liberty to resile. The Lord Ordinary having found the letter libelled on binding, the question came before the Court upon a petition and answers.
The point argued was, Whether a writing, though neither formal nor holograph, was sufficient by law to constitute a bargain of heritage, provided the subscription to such writing was sufficiently authenticated?
The petitioner Wallace maintained the usual argument as to deeds of importance upon the statute 1681, c. 5; and that notwithstanding the missive there was still locus paenitentiæ, and referred to the following authorities; 14th February 1633, Rankin contra Williamson, voce Writ; 5th December 1671, Dickson contra Dickson, Ibidem; Lord Stair, B. 1. t. 10. § 9.; 22d February 1628, Strachan contra Farquharson, voce Writ; Park against M'Kenzie, &c. No 47. p. 8449.; 1765 Bisset contra Stewart*.
The respondent, on the other hand, argued, that all that was required or intended by the solemnities of a deed was, that the subscription should be authenticated; which was more effectually done by the acknowledgement than by any form or solemnity that could be devised. Lord Bankton, v. 1. p. 337. § 47.; 15th July 1662, Wauchope contra Niddrey, voce Writ; 26th December 1695, Beatie contra Lambie, Ibidem; 11th January 1711, Gordon contra M'Intosh, Ibidem; 10th July 1717, Paterson contra Inglis, Ibidem; 22d January 1735, Telfer contra Hamilton of Grange, Ibidem; 6th July 1739, Crosbie contra Shiell, Ibidem.
Their Lordships gave judgment with much deliberation and at considerable length; they were a good deal divided. Those on one side maintained, that to cut down such a missive, was a great encouragement to dishonesty and breach of faith; that no solemnity whatever could give more credit to a deed than the acknowledged subscription of the party; and though there might be some reason for requiring solemnities to deeds transmitting heritage, yet as the the argument did not stop there, but was extended to all deeds of importance, it came to apply also to bargains of moveable subjects, and of course went too far. It was answered, That there was a clear distinction in the application of this rule and the regulation of the statute 1681, as to heritage and moveables; but that as this was an heritable subject, the rule introduced for the safety of the lieges as to their land rights, which had been fixed and acquiesced in so long must be rigidly observed. That these solemnities had been introduced at a period when writing and witnesses were not so readily procured; and it would be absurd to abolish them now, when no such difficulty occurred. There was no distinction betwixt a conveyance and an obligation to convey; for as the last could be rendered effectual by law, it would, if the solemnities were dispensed with, completely evade the rule. And though a promise by missive was no
* Erskine, B. 3. T. 2. § 2, See Appendix.
doubt binding upon the conscience of an honest man, the intendment of the law was, to admit, in certain cases, of locus panitentiæ; which, if matters were entire, he was entitled to take advantage of.
The Lords found, “that as the subject in question is an heritable subject, the letter libelled on is not binding.”
Lord Ordinary, Elliock.For Muir, Lockhart.Clerk, Ross.For Wallace, Boswell.
Fac. Col. No 26. p. 60.
