Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Sinclare
v.
Mr John Sinclare

Date: 18 July 1672

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James Sinclare of Roslin having set to his elder brother, Mr John, a tack of the lands, with a clause irritant,—That if two terms should run to the third, and the tack-duty be unpaid, the tack should be null, and it should be lawful to him to enter to the possession without a declarator; and accordingly he having entered to the possession without a decreet, thereafter pursues a declarator of the clause irritant.

It was alleged, No declarator; because the pursuer having arrested the whole duties, whereby the clause irritant might have been purged before any decreet upon the clause irritant, and so had incapacitated the defender to purge the same; which he was in pessima fide to do, the Lords being always in use to admit the defender to purge at the bar, whensoever the declarator is heard.

It was replied, That any arrestment used, or possession obtained by the pursuer, was after two terms were run in the third, and the clause committed which was lawful for him to do, and to enter to the possession, with consent of the tenants, without a decreet.

The Lords did sustain the declarator, and repelled the defence in respect of the reply.

Page 272.