Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Anent Clauses Irritant
Date: 21 June 1670
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In a declarator of a failyie, or incurring of a clause irritant, through not payment of the annualrent during the space of three terms together, which clause was contained in a contract of wadset; this was found a good defence to purge the failyie,—That he who sought declarator had taken annualrent for terms subsequent to those the failyie whereof was sought to be declared; and that the taking of the said annualrent was an implicit passing from the clause irritant already committed, so that no failyie could be sought but of terms after those for which the annualrent was taken.
So requisition is past from by taking annualrent thereafter: so caducity of a feu, through not payment of the feu-duty by the space of three years, is presumed remitted by the superior's taking the same for years after the feu became caduce; and not protesting for his taking the feu-duties of the years by which the feu was resolved, will not import a discharge of the caducity. Vide L. 7. D. de lege Commissoria; et Harprechtum ad p. 3, Institu. De Locatione et conduct. No. 479 et seq. Vide infra, No. 81, [16th July, 1670, Chesters against Ker.] So a minor cannot remove his tenant, taking maill from him for years after the warning; Craig, and the authors there cited, page 204.
