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Jean Ker v Downie. [1670] Mor 8470 (7 January 1670)
URL: http://www.bailii.org/scot/cases/ScotCS/1670/Mor2008470-062.html Cite as:
[1670] Mor 8470
Where Writ is not necessary. - Where a Bargain is agreed to be perfected in writing. - Locus pænitentiæ after Writ is interposed. - Where the Right to be granted is disputable. - Verbal Bargain for a Lease
Jean Ker v. Downie
Date: 7 January 1670 Case No. No 62.
A house let, allowed to be given up within 48 hours. See No 67. infra.
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Jean Ker having set a house in Edinburgh to Downie for L. 9:10s. Sterling, she obtains decreet against him therefor. He suspends on this reason, that within 48 hours after he took the house, he did by instrument give it over, which is the ordinary custom of burghs, where there is no writ, to quit the bargain within a short space, unless some offer intervene, medio tempore, by which the party is damnified.—The charger answered, That this house having been taken but 14 days before the term, there is neither law nor custom to allowing either party to give over or resile, there being no competent time to set again; for albeit houses sometimes are given over when they are taken, and quit before warning time, when the ordinary occasion of setting to others may occur, yet that cannot be drawn to this case; and the instrument of over-giving was only done by Downie's wife, who showed no warrant.—The suspender answered, That there was no difference whether the house was taken before warning time or after, seeing the law gives locum pænitentiæ, or some small time, which must take place in either case; 2dly, Albeit the charger had not been obliged to accept the over-giving, yet de facto, she has accepted it, because it is offered to be proved, that she set the house to another, and took earnest thereupon, which did import that she quit the first bargain, seeing at once she could not set it to two; 3dly, Albeit offer was made of the keys at the term, yet it is offered to be proved, that the house was not void, but that the former tenant's goods remained therein.
The Lords repelled the first reason of suspension, upon the over-giving; but found that member relevant, that the house being given over, the same was set to another, and earnest taken thereupon; but found that point, that the tenant's goods, who possessed formerly, were not removed, not relevant, in respect of the custom in Edinburgh, not to remove peremptorily at the term.
