Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.

Irving of Drum
v.
Mr Robert Keith of Luntush and Irving of Federat's other Creditors

Date: 2 December 1696

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In the declarator of commission of the irritancy pursued by Irving of Drum, against Mr Robert Keith of Lentush, and Irving of Federat's other Creditors; Cumming of Culter, as a creditor, compearing for his interest, and craving to be admitted as a pursuer, the Lords found neither he nor Drum had now interest to nominate a buyer of the lands, conform to the minute and articles of agreement; because that faculty was already exercised by Federat, within the time prefixed by the articles, in naming Mr Robert Keith as the buyer; and that the discharge of the articles given by Federat afterwards to Drum cannot prejudge Mr Robert Keith, because after his intimation, and that he had inhibited Federat; and found the irritancy still purgeable. Yet, where one restricts himself by way of favour, having paid an adequate price, there a failyie is not purgeable, that not being pactum legis commissoriœ in pignoribus; as was found, 20th June 1664, Scot against Falconer. Then it came to be debated on whose peril the consigned money lay, whether on Lentush and Tolquhon, the consigners', or on Drum's; and who should lose the year's annualrent since the consignation.

Vol. I. Page 738.