Scottish Court of Session Decisions

Subject_1 IRRITANCY.
Subject_2 SECT. IX.

Offer of Payment, if it stops incurring the Irritancy?

Lord Torphichen
v.
The Laird of Pitfoddels

Date: 18 July 1610
Case No. No 102.

A feu being granted, with a clause irritant, it was found not sufficient to offer payment to the procurator, who made requisition; but that the clause irritant was incurred, unless payment or offer had been made to the superior, or his chamberlain.

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My Lord Torphichen, and his curators, having disponed to the Laird of Pitfoddels the barony of ——— in feu farm, for the yearly payment of four score and nine pounds of feu farm, with a clause irritant, bearing these words, “Proviso tamen quod si duo termini currant in tertium, solutione minus facta, legitima requisitione prius facta, &c. tunc, et in eo casu,” &c.; conform to the which provision, my Lord Torphichen sent his procurator to Aberdeen to Pitfoddels, who, before Whitsunday 1609, required him to make payment of the feu-mails 1608. Pitfoddels offered the mails to the procurator, and took instruments thereupon. Thereafter, my Lord of Torphichen intented summons of declarator of the nullity of the feu, in respect of the provision and clause irritant, and of the requisition foresaid, made in his name, and not obeyed by Pitfoddels. It was excepted by Pitfoddels, That he had obeyed the requisition, by the real offer to my Lord of Torphichen's procurator. It was answered, That it was not sufficient to offer to his procurator, because he had no power to receive; and the requisition was to pay to himself, or his chamberlain, in his house of Cadder, where he should be present, by himself or his chamberlain, by the space of eight days, to receive payment, and give discharges; which not being obeyed, the clause irritant was incurred. In respect of the which reply, the Lords repelled the exception.

Fol. Dic. v. 1. p. 491. Haddington, MS. No. 1974.