Scottish Court of Session Decisions

Subject_1 COMPETENT.
Subject_2 SECT. XII.

Irritancy how Proponable.

Stevenson
v.
Barclay

Date: 29 January 1629
Case No. No 50.

Found that a back-tack with a clause irritant of two years running in the third, could not be taken away by exception, but behoved to abide a declarator.

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By contract between Robert Stevenson and Alexander Barclay, Robert disponed to Alexander a tenement in Strivling redeemable upon 1400 merks; and, during the not redemption, Alexander set a back-tack to Robert for 140 merks yearly. Alexander, having caused registrate the contract, raised a charge of horning thereupon against Robert, which he suspended. The charge was, to enter him to the possession of the house disponed. The reason of suspension was upon the back-tack during the not redemption. To this answered, That the back-tack was expired, in so far as it contained a clause irritant, if two terms should run in the third. Replied, This back-tack could not be taken away so, before it were declared expired. The Lords found it behoved to abide a, declarator.

Fol. Dic. v. 1. p. 174. Spottiswood, (Tack) p. 327.