BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
George Lawson, Treasurer of Edinburgh, v James Auchinleck, Chirurgeon Apothecary there. [1699] Mor 8402 (28 June 1699)
URL: http://www.bailii.org/scot/cases/ScotCS/1699/Mor2008402-012.html Cite as:
[1699] Mor 8402
George Lawson, Treasurer of Edinburgh, v. James Auchinleck, Chirurgeon Apothecary there
Date: 28 June 1699 Case No. No 12.
Two parties excambed their shares in two public companies. Earnest was given, but no transfer subscribed. Locus pænitentiæ admitted, upon returning earnest, and paying damages.
Click here to view a pdf copy of this documet : PDF Copy
Crocerig reported George Lawson, Treasurer of Edinburgh, against James Auchinleck, chirurgeon apothecary there. They had entered into a bargain by way of set, whereby George excambed some shares he had in the paper manufactory and African Company, with some shares James had in the Bank, and thereon a guinea of earnest was given. James being pursued on this transaction before the Bailies of Edinburgh, he was decerned to implement and adhere thereto. He raises suspension and reduction, on this reason, that such agreements are only completed by writ, and till that be interposed there is locus pænitentiæ, and now he resiled, seeing the transfers of these excambed shares were not as yet subscribed. Answered, In such bargains as these, by the custom of nations, there was no more required but the set, and they were binding from the date; and Benevenutus, Stracha, and other lawyers who write de sponsionibus mercatorum prove it to be the custom of all the trading towns in Italy. Replied, Though these sponsions be frequent among merchants, yet writ is necessary to their perfection and consummation; they cannot bind till the same intervene, this being a contract qui re perficetur; and if this were good law, then if lands were excambed by a set, their property should be conveyed before the dispositions were subscribed and delivered, which were absurd. The Lords thought the resiling ungenerous, but could not subvert the principle of law, whereby there is locus pænitentiæ ay till subscribing of papers; but thought he should be reponed cum omni causa, and not only his guinea returned, but all his damages likewise paid, through not adhering to the bargain; but reduced the Bailie's decreet as iniquitous.
Fol. Dic. v. 1. p. 561. Fountainhall, v. 2. p. 55.
