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Sir William Menzies v Janet Johnston. [1709] 4 Brn 744 (26 February 1709)
URL: http://www.bailii.org/scot/cases/ScotCS/1709/Brn040744-0244.html Cite as:
[1709] 4 Brn 744
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Sir William Menzies v. Janet Johnston
Date: 26 February 1709
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Sir William Menzies, on his remit of Parliament, pursues Janet Johnston, relict of Captain Wood, brewer, for relief of a proportional part of a sum paid by him to the public, for their tack of the excise.
Alleged,—You cannot insist for the sum libelled, because I offer to prove that I agreed with you, on certain conditions, for a lesser sum; and which terms I am willing to fulfil.
Answered,—I am not bound to swear, because, the transaction having been to be perfected in writ, there was locus pœnitentiœ, aye till it was extended and delivered.
Replied,—That was indeed the rule, but, where the affair was transacted by a pactum liberatorium, it was an exception, both in the common law and ours; as the Lords found, 12th December 1661, Hepburn, and 8th February 1666, Ker.
The Lords found he was bound to depone in this case, but made it before answer.
