Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Dirur (Dewar) v. The Countess of Murray
Date: 20 December 1661
Click here to view a pdf copy of this documet : PDF Copy
The Countess of Murray having set a tack to Ja. Dirur (Dewar) for payment of 1200 merks, with a clause irritant, that in case it should happen two terms to run in the third unpaid, that then she should eject and remove him, and meddle with his corns and cattle, without any hazard of spulyie or ejection; and that brevi manu, without a declarator. The Countess having ejected him and meddled with his goods, she is convened for spulyie and ejection, having neither poinded his goods nor got declarator on the clause irritant. Alleged, Quilibet potest renunciare juri pro se introducto; et prout unumquodque contrahitur, sic etiamn dissolvitur. That he had renounced the benefit of a declarator in the tack, and in the mutual contract was content the lady should eject him without a declarator: and that beneficium non confertur in invitum; as, et volenti non fit injuria.
REplied,—that just as in clauses irritant for not payment of a feu-duty there is a necessity of a declarator, though dispensed with, even so here. Alleged, There was a disparity, because in clauses irritant that are provided by an express law of feus, there is necessity for a declarator by reason of their importance, tending to take away heritage: but in conventional clauses irritant, betwixt master and tenants, there is no necessity; but the master may brevi manu eject, it being so provided betwixt them, especially where there is no third party lesed by the ejection.
The Lords assoilyied from the ejection, in respect of the contract. It was also alleged that the Countess had accepted of a part of the tack-duty after the committing of the clause irritant; which they found she might do without prejudice of the ejection.
