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Scottish Court of Session Decisions >>
Nairne v Naper. [1625] Mor 7202 (19 July 1625)
URL: http://www.bailii.org/scot/cases/ScotCS/1625/Mor1707202-038.html Cite as:
[1625] Mor 7202
A wadset had been declared irredeemable, if not redeemed upon a premonition of 90 days before the term. The clause irritant was sustained, and the Lords refused to assign a day to purge it; the party not offering instantly to consign at the bar.
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In an action of declarator at the instance of Nairn contra Naper, whereby the pursuer craved the right of the land, wadset to him upon a certain sum, under reversion, to be declared to pertain to the pursuer heritably and irredeemably, because of a clause irritant contained in the contract, that if that sum were not paid to the pursuer at any term whereat he should seek payment, after requisition made to the defender by him, upon ninescore days preceding the term, that then the lands, in case of failzie, to pay at the term, should pertain heritably and irredeemably to the pursuer; which action and clause irritant were sustained, albeit it was alleged, that pactum legis commissoriæ was rejected in pignoribus, and that this wadset of lands was pignus or hypotheca, which was repelled, and the clause irritant was allowed; neither would the Lords assign a day to the defender, as he craved, to purge the failzie and pay the sum, in respect of the requisition, preceding upon so many days, but decerned in the declarator, seeing the defender offered not instantly to consign the sum at the bar, to be delivered to the pursuer.
Clerk, Hay.
Fol. Dic. v. 1. p. 486. Durie, p. 178.
