Scottish Court of Session Decisions

Subject_1 LOCUS POENITENTIAE.
Subject_2 SECT. III.

What writing sufficient to bar Locus Pænitentiæ. - Ubi res not est integra. - Rei interventus. - Oath. - An informal writing does not bar Locus Pænitentiæ. - Promise to ratify an informal writing bars Locus Pænitentiæ.

Mr Gideon Rutherford
v.
The Feuers of Bowden

Date: 7 June 1748
Case No. No 44.

An informal writing on unstamped paper, with an address to a writer subjoined, to draw an agreement in form, was sustained.

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Mr Gideon Rutherford of Kidheugh, proprietor of the Over Mill of Bowden, to which the Feuers of Bowden were astricted, raised a process against them for abstracted multure, which gave occasion to a meeting, 26th January 1743, betwixt him and four of the principal feuers, where the quantity of the multure was adjusted by a paper, intitled, Articles of Agreement betwixt Mr Gideon Rutherford and the Feuers of Bowden; to which was subjoined a direction, addressed to a certain writer, to extend a formal contract agreeable thereto, signed on the last page by the pursuer, his miller, and the four feuers; and on the first, being the whole number of pages, by the pursuer and one of the feuers.

Mr Rutherford, on an allegeance, that there remained some other articles to be determined, which the feuers, at a subsequent meeting, declined to settle, proceeded in his process, and the feuers defended themselves on the agreement.

Pleaded for the pursuer; The agreement is null, being on unstamped paper, not bearing the name of the writer, nor signed before witnesses, containing several unsigned interlineations and marginal notes, and not subscribed by the whole defenders, and so not binding on both sides; besides, as it was agreed, a formal contract should be executed by all the parties, there is locus pænitentiæ till that be done.

Answered; The agreement was intended to be binding, being signed by the pursuer, his miller, and the four defenders who acted for the rest. There was no need of the solemnities of deeds, as so many subscribers were contestes to each others subscriptions; and the whole are now bound, as there was an instrument taken in their name, 21st January, declaring their accession thereto, and they are now taking advantage of, and defending themselves upon it, and have homologated it by paying, as the pursuer has by receiving his multures accordingly, ever since the date. It did not need to be stamped, for though it was intended to bind the parties, yet a more formal writing was intended to be executed; and as the Lords have sustained actions upon missive letters, the address to the writer was in form of a missive.

Replied, The four feuers did not take burden for the rest, but it was intended the whole should subscribe, till which time the contract was imperfect. The miller's taking the multures, when they would pay him no other, could not bring any obligation on the pursuer, who, 26th January, wrote to his agent to go on with the process, but willing to refer it to a certain gentleman, it was not moved in till July thereafter, so that there was no homologation to bind him.

The Lords, 13th January 1748, “found that the pursuer was bound by the agreement.”

On bill and answers, wherein all the feuers, except one who was minor, and for whom the rest took burden, offered a formal writing, obliging themselves, in terms of the minute,

The Lords adhered, and remitted to the Lord Ordinary to see the feuers accede to the contract.

Act. R. Craigie & G. Pringle. Alt. W. Grant & Garden. Reporter, Tinwald. Clerk, Hall. Fol. Dic. v. 3. p. 394. D. Falconer, v. 1. No 255. p. 342.