Scottish Court of Session Decisions

Subject_1 PROOF.
Subject_2 DIVISION I.

Allegeances how relevant to be proved.
Subject_3 SECT. XII.

Verbal Contracts.

Kincaid
v.
Stirling

Date: 12 January 1750
Case No. No 240.

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A Person having built a dam-dyke, resting upon the ground of another, whose consent he alleged he had obtained, and offered to prove the agreement by witnesses; it was questioned, whether a real servitude of this kind could be constituted by a verbal agreement, probable by witnesses. The Lords thought, that, even if such agreement were admitted, there is always a locus pænitentiæ till writ be adhibited; but that, in this case, if it should appear, that, in consequenee of such verbal agreement, the complainer had suffered the dyke to be built, he would now be barred, personali exceptione, from having it demolished; and, for that end, they allowed a proof of the agreement.

Fol. Dic. v. 4. p. 161. Kilkerran.

*** This case is No 13. p. 8403. voce Locus PoenitentiÆ.