A wadset was granted, with a clause, bearing, that, if the reverser did not put the wadsetter in possession within a limited time, the reversion should eo ipso expire. After the space was expired, the Lords allowed the reverser to give up possession to the wadsetter, paying him damages for not possessing within the stipulated time.
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Sawer having wadset some tenements in Edinburgh to Rutherford, wherein there was a clause irritant, bearing, that if Sawer did not put Rutherford in possession of the hail tenement, the reversion should expire, whereupon Rutherford obtained declarator of the expiring of the reversion, because Sawer had detained a part of the tenement, Sawer raised suspension and reduction of the decreet of declarator upon these reasons: First, The clause irritant was panctum legis commissariæ in pignore reprobate in law: Secondly, Because, by the act 62d Parliament 1661, betwixt debtor and creditor, it was declared, that clauses irritant for not payment of the sums in wadsets since 1649, should not be effectual. The defender answered to the first reason, That by act of sederunt of the Lords in anno 1642, clauses irritant and failzies were declared effectual; and albeit the Lords ex gratia are in use to suffer parties failzing to purge the failzie, by satisfying damage and interest at the bar; yet it could not now be received after a decreet in foro contradictorio. To the second reason, it was answered, That the said act of Parliament was special, in relation to clauses irritant, for not payment of the sum in the wadset, which was stricti juris, and could not be extended to this wilful failzie, in the pursuer's not removing and possessing him, and for the decreet it was in absence, albeit a supplication was given in after the decreet, desiring to be heard, whereupon he was not heard, but the answer to the supplication bore, that his desire was only competent by way of suspension and reduction.
The Lords found the decreet not to be in foro contradictorio; and therefore reponed the pursuer to purge the failzie, by possessing the defender, and paying damage; but found that the clause in the act of Parliament reached not to this case; but whereas the pursuer craved count and reckoning of the profits of the wadset tenement, by the said act of Parliament, bearing that improper wadsets where the granter of the wadset is in the hazard of public burden, &c. being since 1649, the wadsetter should be countable for the profits more than the annualrents, since the date of the wadset;
“The Lords having considered the wadset, by which the wadsetter bore the public burden, found the said clause of the act not extended to make the defender countable since the date of the wadset, but only since the date of the offer to secure the wadsetter conform to the act of Parliament, by virtue of any other clauses of the said act, ordaining all wadsetters to count for the superplus, and to possess the granter of the wadset, he finding caution for the annualrents, or to restrict to his annualrent.
