The statutable irritancy ob non solutum canonem found not purgeable, the offer being made long after raising the declarator.
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Wardlaw of Curriehill pursued the Laird of Riccarton to hear and see his feu farm infeftment of Riccarton, held by the said Patrick Hepburn of the said William Wardlaw reduced for not payment of the feu duties therein contained, for the space of three or four years, conform to the act of Parliament made thereanent. It was excepted, That he ought to be assoilzied, because this pursuit not being upon a clause irritant, contained in the infeftment, nor in the King's property, but inter privatos upon the act of Parliament, which is relative to the law, civil and canon, of the law licet purgare moram ante litiscontestationem; likeas, the defender offers instantly to pay all bygones. It was answered, That this summons being founded super provisione legis, and there neither being payment made, nor any real offer, by the space of six years, the pursuer could not now be compelled to accept any such offer, not only after the expiring of so long time, but after the dependence of this so long a plea, seeing the summons was intented in anno 1602, and never an offer made before this day. The Lords having reasoned whether the oversight might be purged ante litem contestatam, vel ante litem intentatam, vel ante diem comparationis, they thought it meetest in this case to repel the allegeance, in respect of the state of the process, and that there was no offer made neither before the action, nor sinsyne, during so long dependence till this time.
