Offer of Payment, if it stops incurring the Irritancy?
Johnston v. Lo Herries.
Date: 20 March 1627 Case No. No 103.
An offer, without consigation, was found sufficient, there having been no stipulation in the contract, that consignation should be made, in case of refused to receive the money when offered.
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In an action pursued by Johnston of Eschescheills against Lo. Herries, to hear and see a reversion decerned to be extinct, because it is therein provided, that, if the party, in whose favour it was granted, did not offer the money, whereupon the lands were redeemable, at the time therein prefixed, in that case it should expire; and in the reason, he subsumed that he had failzied. The defender compearing, alleged, That he had really offered the money debito tempore, and so had the benefit of the reversion still competent; and the pursuer contended, That the offer, unless consignation had been made also after the offer, could not be admitted as sufficient to stay the failzie. The Lords found a real offer was sufficient to stay the force of the expiring of the said reversion, albeit no consignation was thereafter made; which the Lords found noways necessary, the said offer being really and lawfully made, as said is, seeing, in the clause of reversion, there was no provision, appointing consignation to be made, in case of refusal to receive the money the time of the offer.
Act. Cunningham.Alt. Belshes.Clerk, Scot.
Fol. Dic. v. 1. p. 491. Durie, p. 292.
