A tacksman was allowed to purge at the bar, where it was pactioned that the tack should be null upon failure of payment of a single year's rent.
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The bishop of Orkney pursued one Sinclair to hear and see a tack of certain teind sheaves set by him to be reduced by reason of a clause irritant, that if the conductor, by the space of 40 days after the term, failed in not payment, the tack should expire. It was answered, that the most the bishop could crave owing to him, was but the payment of one term, and so de æquitate potuit purgari hæc mora, and it was a hard manner, et summum jus, quæ fuit summa injuria to reduce a nineteen year's tack for not payment of one term. The matter being reasoned among the Lords, some were of opinion ut supra, quod contractus ex conventione legem arripit, est in conventionibus in quibus dies et pæna adjecta est, non admittitur purgare moram; L. 84. D. De verborum obligationibus; et supra iner Pluscardine et sheriff of Murray No 55. p. 7225., and so by reason of the clause irritant expressed in the tack, the party could not be heard ad purgandam moram, albeit it was but mora modica; nevertheless, the Lords would not the tack should reduce.
Fol. Dic. v. 1. p. 488. Colvil, MS. p. 424.
*** The like was decided 9th March 1611, Seaton against Seaton, No 15. p. 7184; and 26th July 1678, Pourie against Hunter, No 145. p. 2685., voce Compensation.
