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Scottish Court of Session Decisions >>
Helen Hepburn v Hamilton of Orbiston. [1661] Mor 8465 (12 December 1661)
URL: http://www.bailii.org/scot/cases/ScotCS/1661/Mor2008465-053.html Cite as:
[1661] Mor 8465
Pacta liberatoria are effectual with out writ, so there is no locus pænitentiæ
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Helen Hepburn, as executrix to her father, Humbie, pursues Sir James Hamilton of Orbiston, for payment of 1000 merks, due to her father by a bond. The defender alleged absolvitor, Because there being a bond of L. 10,000 granted by Belhaven, Humbie, Preston, and Orbiston, for the use of the late Duke of Hamilton, but there being nothing to instruct that it was the Duke's debt; yet there was a transaction with the Dutchess of Hamilton for a lesser sum, whereof Belhaven, Preston, and the defender, had paid their part; by which transaction, the pursuer's tutrix and overseer did agree to quit this bond, in respect that her father was acquitted of any share of the bond of L. 10,000. The pursuer answered, 1mo, That the defence ought to be repelled, because, being but a verbal agreement, before writ was subscribed, either party might resile. 2do, The transaction cannot be instructed, there being no writ, and witnesses are not competent; neither can the tutrix's oath prove against the pupil. The defender answered to the first, that the transaction being pactum liberatorium, it required no writ, and so there was not locus pænitentiæ; and as to the probation of the transaction, though tutor's oath of knowledge of any debt of the pupil's predecessors will not prove against the pupil, because the tutor is singularis testis, and not in officio, but a tutor's oath, as to deeds done by himself in officio, would sufficiently prove the same.
The Lords thought there was not locus pænitentiæ from the transaction though but verbal; but as to the manner of probation, they ordained the tutrix and overseer's oaths to be taken, ex officio. See Proof.
