Scottish Court of Session Decisions

Subject_1 IRRITANCY.
Subject_2 SECT. VI.

Irritancy ob non solutum canonem, when purgeable.

Finlayson and Weir
v.
Clayton

Date: 30 June 1761
Case No. No 69.

A conventional irritancy in a tack, by which it was provided that it should not be allowed to be purged at the bar, found not to be purgeable.

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The Duke of Hamilton's commissioners set a tack of the lands of Potterhill to Finlayson and Weir for nineteen years. The tack contained this clause:

“That in case two terms of the said tack-duty shall run into the third unpaid, in that case the present tack shall, at the option of the said Duke and his foresaids, become thenceforth extinct, void and null, without the allowance of being purged at the bar.”

The Duke of Hamilton sold these lands to Clayton, and the tenants having incurred the irritancy, Clayton brought a process against them before the Sheriff for payment of three year's rent, and concluding that they should be decerned to remove in terms of the above clause. The tenants claimed some articles of compensation, and offered instantly to pay the balance. The Sheriff, after allowing these articles of compensation, found a balance due amounting to more than three terms rents, and decerned in the removing. The tenants presented a bill of advocation, which was taken to report.

Pleaded for the Tenants; That immediately upon the balance being ascertained, they consigned the sum in the hands of the clerk of court, and offered to find caution for payment of the rents during all the years of the tack. That it is an established point in the law of this country, That the legal irritancy of feu-rights ob non solutum canonem, introduced by statute, may be purged at the bar: That it was found in a case observed by Lord Fountainhall, 23d March 1686, Drummond against the Creditors of Hamilton, No 66. p. 7235. that a conventional irritancy in a feu-right may likewise be purged: That though there are several decisions to the Contrary, the above case is certainly more agreeable to law. The end sought after by these irritancies, whether legal or conventional, is the same: They are introduced in terrorem, to compel the vassal to pay his feu-duty within a certain time. It is impossible therefore to discover a reason for making a distinction betwixt the legal and the conventional irritancy. The act 1597, c. 250. expressly declares, “That vassals failing to make payment of their feu-duties for the space of two years, shall amit and lose the feu of their lands.” Notwithstanding these express words, the legal irritancy has always been allowed to be purged; and the same must be the law with regard to the conventional irritancy. Irritancies in tacks are upon the same footing. They are only intended to force the tenants to pay regularly; and if payment is made, it is all that can be desired. The legal irritancy may be purged at the bar, and the law must be the same with regard to the conventional irritancy; and so it has been found by some old decisions. The only question is, whether this can hold in the present case, where it is particularly provided, that the irritancy shall not be purgeable: And though in strict law the irritancy cannot be purged, yet the Court may give relief as a court of equity, especially as the tenants have consigned the whole of the rents due, and have offered to give security for regular payment in time to come.

Pleaded for Clayton; That the clause in question is most express; and as it is agreeable to law, there is no reason why it should not have its effect. Every man may renounce any right that is competent to him, and supposing this irritancy might have been purged at common law; yet, as the tenants have expressly renounced this privilege, they cannot now pretend to claim it.

Other similar clauses in tacks have their effect, and there can be no reason why that in question should not. A tenant must be warned to remove forty days before Whitsunday; and yet, if he has bound himself to remove without warning, he can be removed summarily; and the act of sederunt 1756 allows a charge of horning in such cases. That act too provides, that if the tenant shall allow two years rent to be in arrear, he may be summarily removed, and that irritancy is not allowed to be purged.

“The Lords found, That the irritancy could not be purged; and therefore refused the bill of advocation.”

Reporter, Lord Auchinleck. For the Tenants, Wight. Alt. Lockhart. Clerk, Pringle. Fol. Dic. v. 3. p. 338. Fac. Col. No 45. p. 98.