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Lord Carmichael v William Cheisly. [1700] 4 Brn 486 (29 February 1700)
URL: http://www.bailii.org/scot/cases/ScotCS/1700/Brn040486-0931.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
Lord Carmichael v. William Cheisly
Date: 29 February 1700
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The Lord Carmichael, secretary, as superior of the lands of the Townhead of Grange, pursues a non-entry. Mr William Cheisly compears, and Alleges he has right, by apprising, from Muir of Anniston; and that, by a verbal agreement, my Lord condescended to accept him as vassal, on paying a year's rent; and whereof he had paid his chamberlain a part, and gotten his discharge.
Answered,—Anniston had no right; and so his apprising was against the wrong person. 2do. The superior would pay the debt and take the land to himself; which is both consonant to the feudal law, per retractum dominicum, and to our Acts of Parliament, Act 36, 1469: and any promise emitted, never being redacted into writing, and which could only be perfected by granting a charter, there was locus pœnitentiœ before performance; and so the promise is not obligatory.
The Lords considered there was rei interventus here, by paying in a part of the composition; and therefore ordained my Lord to depone first anent the promise.
