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Laird of Innes v The Duke of Gordon. [1700] Mor 8427 (31 January 1700)
URL: http://www.bailii.org/scot/cases/ScotCS/1700/Mor2008427-035.html Cite as:
[1700] Mor 8427
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.
Laird of Innes v. The Duke of Gordon
Date: 31 January 1700 Case No. No 35.
In an action at the instance of a wadsetter, it was objected, that the wadset was subscribed by the heritor only, not by the wadsetter. The objection was repelled.
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Crocerig reported the Laird of Innes against the Duke of Gordon, being a pursuit for mails and duties upon a wadset of the lands of Enzie, given by the Marquis of Argyle, when heritor or donatar for L. 15,000, as a part of Lady Anna Gordon's tocher with the Lord Drummond in 1639. Alleged, 1mo, The contract of wadset is null, being only subscribed by the Marquis of Argyle, and not by Sir Robert Innes; and mutual contracts are not obligatory, except where both parties subscribe them, its definition being duorum vel plurium in idem placitum consensus, which consent is requisite ad perfectionem contractus. 2do, This Innes's retour is ipso jure null, bearing the lands to be holden of the King, whereas the wadset being base, it held of the Duke as come in place of Argyle, the donatar to the forfeiture, and so is by the wrong superior. Answered to the 1st, The practice of subscribing at that time was, that the one party signed the one double and gave it to the other party, and he did the like with his, as is to this day used in England; neither can the Duke quarrel this, seeing Innes is willing to adhere to and own all his obligements in the contract. And Durie observes, that the Lords, on the 9th of February 1627, M'Duff contra M'Culloch, No 16. p. 8406. found a contract subscribed only by one of the parties might be registrate and charged on by the other, he offering to sign it; and as to the retour, it is a sentence of 15 sworn men, and must stand till it be reduced, especially seeing the Duke produces as yet no right.—The Lords repelled the dilators.
Fol. Dic. v. 1. p. 564. Fountainhall, v. 2. p. 85.
