Scottish Court of Session Decisions

The pursuer maintains that it is now too late for the defender to make such a proposal, and that the irritancy must be at once declared, and he refers in support of his contention to the statement of Mr Menzies in his Lectures on Conveyancing, 524, and to the cases of Sutherland, 1664, M. 7229, and Stewart v. Watson, July 20, 1864, 2 Macph. 1414. The statement of Mr Menzies has reference to the casualty of tinsel of the feu ob non solutum canonem’ enacted by the Statute 1597, c. 250, and to conventional irritancies for non-payment of feu-duties expressed in a feu-right. His words are—‘The irritancy may be purged by payment at the bar, but when it is conventional ( i. e., expressed in the title) purgation is not allowed, unless the vassal gives a reasonable excuse for his delay— Laird of Wedderburn v. Wardlaw, February 13, 1666, 2 B. Sup. 138. ‘If it were necessary to consider whether in the present case the defender has stated a reasonable excuse for his past delay, I am inclined to think that the delay, although great, has been not altogether inexcusable. But it is not necessary to consider that question, because it appears to me that the authorities do not support the doctrine of Mr Menzies. It is quite true that at the dates of the judgment in the case referred to by Mr Menzies, and in the case of Sutherland, cited by the pursuer in his argument, i.e., in 1664 and 1666, the practice of the Court seems to have been to distinguish between the statutory and conventional irritancies in feu-rights, and to allow the former to be purged at the bar, but to refuse to allow the latter to be so purged. But the practice soon changed. Lord Stair, who is the reporter of both these cases, states in the third edition of his Institutions, which was carefully revised by himself and published in 1693, (ii. 3, 51)—‘The law doth also introduce conditions in infeftments which do not arise from their nature, as in feus, by the common feudal law and by special statute with us, whereby if the feu-duty be not paid by the space of two years, whole and together, that the feu shall be extinct and lost—Parl. 1597, c. 250. So the Roman emphyteusis by three years not-payment became void—1. 2, c. de jure emphyt. It is therefore beyond doubt that such clauses are effectual whether expressed or not expressed in the infeftment.’ Here the statutory and conventional irritancies are dealt with as being in pari casu, and although both are stated to be ‘effectual, ’ and nothing is said as to the right of the vassal to purge either irritancy at the bar, it is undoubted that in the case of the statutory irritancy the vassal had such right. But in book iv., which did not form part of the original edition of his work, Stair says (tit. xviii. sec. 3), speaking of clauses irritant, i.e., of conventional irritancies—‘Sometimes they bear that in the cases therein mentioned the rights shall thereby become null, ipso facto, without declarator. But notwithstanding of this, clauses irritant are not effectual till they be declared where they are exorbitantly penal. For the Lords ex officio have power to modify exorbitant penalties, albeit they bear to be liquidated of consent of parties. And for the same cause they have power to qualify these clauses irritant, and to allow time for purging the same, —yet only if they be truly exorbitantly penal. For such clauses contained in gratuitous rights take their full effect, because then they are not penal, but are conditions and provisions qualifying the right, and therefore they need no declarator.’ And accordingly, although for some time the decisions of the Court may have fluctuated, the practice appears to have become general—at all events by the middle of the eighteenth century—to hold in the case of irritancies in feu-rights, whether statutory or conventional, that the right of the contravener was not void, but only voidable, and that the irritancies might be purged at the bar, i.e., Baillie, 1693, M. 7254; Forsyth, 1708, M. 7255; Lord Elibank, 1767, M. 7241; Lockhart, 1770, M. 7244.

Mr Erskine, whose greater work, though not published till 1773, five years after his death, must have been written before 1768, says (ii. 5, 27)—‘But where the legal irritancy is fortified by a conventional, the vassal cannot, or at least by the old practice could not, purge without his being able to assign a reasonable cause why payment was not regularly made— Wedderburn, February 13, 1666, 2 B. Sup. 138; or unless an obscurity appeared in the words of the irritant clause— E. of Mar, February 18, 1680, 2 B. Sup. 256.’ Mr Erskine's reference to the ‘old practice’ seems to show that he was aware that the practice had changed or was undergoing a change. And Mr Bell, writing in 1839, says (Prin. sec. 701)—‘This irritancy is provided by statute, and sometimes enforced by conventional stipulation. But in all cases it requires a declarator, the forfeiture being purgeable at the bar before decree of declarator is extracted.’

In the case of the Tailors of Aberdeen v. Coutts. August 3, 1840, 1 Rob. Apps. 296, the whole question was raised, and was deliberately considered by the Judges, who were unanimous in concurring in the general exposition of the law contained in the opinion of Lords Gillies, Mackenzie, Corehouse, and Jeffrey, the authorship of which is commonly attributed to Lord Corehouse. The passage in that opinion which bears upon the present question is as follows (p. 315)—‘It may therefore be considered as undoubted law that if a condition in a feudal grant is conceived in terms to make it real, and is not objectionable on any other ground, no irritant clause is necessary to give it effect against singular successors. If it is clearly personal or exposed to objections, an irritant clause will not

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