A tack found null without declarator, in consequence of a conventional, irritoncy, which was not allowed to be purged.
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Helen Hepburn pursues Adam Nisbet to remove from a tenement in Edinburgh, who alleged absolvitor, because he had a tack standing for terms to run. It was replied, that the tack bore expressly, if two terms run in the third unpaid, the tack should expire and be null, ipso facto, without declarator. It was answered, that notwithstanding clauses so conceived, the Lords have been accustomed to put them to declarator, in which case, they have the privilege to purge the failzie at the bar, and if need be, the defender will now purge.
The Lords found reply relevant, in respect of the conception of the clause, and would not suffer the defender to purge; for albeit in declarators against feus, ob non solutun canonem, the Lords will suffer the defenders to purge at the bar, when the pursuit is upon the act of Parliament, yet they will hardly suffer them to purge where that clause irritant is expressed in the infeftment; so proprietors may pursue their tenants for failing to pay the duties of their tack, and to find caution in time coming, else to remove, when there is no such clauses irritant, and then they may purge; but when the clause irritant is expressed, there is far less reason they should have liberty to purge in tacks than in fcus, where the penalty is much greater.
Fol. Dic. v. 1. p. 488. Stair. v. 1. p. 271.*** Gilmour reports this case.
In an action of removing pursued at the instance of Helen Hepburn against Adam Nisbet, writer, there was a defence proponed upon a liferent tack. It was answered, That the tack was null, bearing, that in case two terms duties should run in the third unpaid, it should be null, without declarator; but so it is, the defender hath failed. Replied, That such clauses irritant are never sustained without a declarator of the failzie. Duplied, That though it were so in matters of heritage or great importance; but when a dwelling-house is set so, with a clause irritant for sure and precise payment of the mail, it is no reason to prejudge the setter of the liberty of her own house, if the tacksman fail in due payment of the mail; and in law and reason, the setter should not be put to a pursuit of declarator in such a case.
The Lords repelled the allegeance and reply, in respect of the answer and duply.
