Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. XVII.
Effect of Compensation, of Retention, of Re-compensation in instances not included in the Preceding Sections.
The Laird of Pourie v. Hunter
Date: 16 July 1678 Case No. No 144.
Compensation not sustained to purge an irritant clause.
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Pourie pursues reduction of his vassal Hunter of Burnside his infeftment, ob non solutum canonem, the infeftment bearing a clause, That if should be null if two terms run in the third unpaid.—The defender alleged absolvitor, because he produced a discharge for the year 1672, and precedings; and as to the year 1673, he offers to prove, that he delivered the feu-duty to Pourie's servant in his own presence, without contradiction; and though it was sent back to him ex post facto, yet it was sufficient to purge an odious clause irritant, being now offered to be furthcoming at the bar; and as to the subsequent years, he offers to prove offers were made before the three terms were run; 2do, The pursuer intus habuit, being debtor to the defender in a liquid sum exceeding the feu-duties.—The pursuer answered to the first, an offer non relevat without consignation; neither was compensation competent against feu-duties, wherein the acknowledging of the superior, by an address of an yearly payment, is more considered than the value of the feu-duties; neither can clauses irritant, exprest in infeftments, be purged at the bar; for they differ therein from the irritancy introduced by law, that these may be purged; but where the investiture contains the clause ‘to be null in case of three terms unpaid,’ the same cannot be purged.
The Lords did not sustain purging at the bar, nor the compensation; but found the payment to the pursuer's servant without contradiction, and the offer debito tempore, though without consignation, being now made furthcoming at the bar, relevant to purge the clause irritant, albeit the offer, without consignation, cannot stop the course of annualrents.
Fol. Dic. v. 1. p. 168. Stair, v. 2. p. 642.*** Fountainball reports the same case:
The Lords inclined to think, the vassal should not compense his feu-duties, with any debt his superior is owing him; but it being a recognizance, it should be offered with humility.
Fountainball, MS.
*** Lord Kames cites a case, 17th July 1625, Lord Touch against Fairbairn, from Haddington, importing, that, contrary to the above, compensation had been sustained to purge an irritant clause.—Lord Haddington's MS. in the Advocate's Library, does not come down to so late a date. If the case shall be found, it will be inserted in the Appendix relative to this Title. See Irritancy.
