Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Date: 7 November 1682
Elizabeth and - Barclay and Phin, their Mother, v. Phin and Duncan
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In a declarator of the commission of a back-tack in a wadset, for not paying the back-tack duty, by the space of three or four terms run together; it was Alleged, The back-tack not being conceived under an irritancy in case of not payment, by suffering two terms to run in the third unpaid, the failyie could not be declared.
The Lords, upon Forret's report, found such back-tacks had, in their own nature, a legal irritancy, though there was none in the contract and paction; and therefore declared it was incurred; and admitted the creditor to the natural possession of the wadset-lands, unless the debtor would purge the failyie by payment of the bygones before extract, and would find caution to pay it in time coming.
Though some cried out on this as extraordinary, yet the same was decided before; whereof Stair, tit. Tacks, p. 338, gives instances.
