Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Date: 25 March 1685
Elizabeth Pitillo v. -
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In a case between Elizabeth Pitillo and the following point
was decided, and much complained of. My Lord Couper having apprised some lands, his assignee gives a declaration, that, though the legal was expired, yet, if the 1000 merks still resting of the sum should be paid him within two years, he was content to accept of it. The two years expire without payment: he is afterwards called to a count and reckoning, and he defends himself with the legal, which, ex gratia only, he had prorogated conditionally, if he were paid; which failing, he was in his own place. Answered,—It was odious to take the benefit of the legal, and he had not declared the failyie, (but it was not conceived in the terms of a clause irritant, and so needed not declarator;) and therefore it might still be purged; especially seeing he had intromited with the rents, and was paid; but, the public burdens being great, he only wanted about 200 merks of his sum.
The Lords would not give him the benefit of an expired legal, but found it still open, and redeemable by payment of what was yet resting.
