In a case similar to the above, the Court found the pursuit of removing equivalent to a declarator of irritancy; the defender not offering to purge by payment of bygones.
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David boswel of Auchinleck being heritably infeft in the lands of Sundrum, by the Lord Cathcart, convened the tenants for payment of the farms thereof, for the years; 1629 and 1630. Alleged by the Lord Cathcart, compearing for his interest, The tenants should not pay the duties to the pursuer, because any infeftment he had, proceeded on a contract, containing a back-tack of the said lands during the not redemption of 8000 merks, for payment of 800 merks to the pursuer by the Lord Cathcart, in respect whereof the farms belong to him. Replied, That ought to be repelled, in respect the back-tack contains a clause irritant; that, if two terns should, be unpaid, together, the back-tack should expire, and it should be lawful to the pursuer to intromit with the saids duties, without any farther declarator.——The Lords repelled the exception in respect of the reply, and found the pursuit equivalent to a declarator; and this was because the defender never offered to purge the bygone failzie by payment of all that was owing.
Fol. Dic. v. 1. p. 174. Spottiswood, (Tack) p. 328.
