Found, that a conventional irritancy might be pleaded by way of exception without declarator.
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In the action pursued by James Donaldson and Gilbert Kirkwood against the Tenants of Killeth, for removing; the tenants, and Mr Simon Ramsay who was infeft, alleged, that the pursuer could have no action to remove them upon his infeftment, because when the pursuer obtained his infeftment, he had set a back tack to the granter of the wadset, from whom they had right; albeit it contained a clause irritant, yet it required a declarator of the failzie before they could remove the tenants. The pursuer answered, That the back tack bears an express provision, that in case the tacksman failed in payment of the duty, the tack should expire and be null, without declarator. The Lords found, that in contracts of that nature, where the clause of nullity was consented to have effect without declarator, that they might be received by way of exception or reply without declarator.
