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Scottish Court of Session Decisions >>
Laird of Romano v Nisbet. [1609] Mor 12355 (23 November 1609)
URL: http://www.bailii.org/scot/cases/ScotCS/1609/Mor2912355-132.html
Payment and Consignation how relevant to be proved.
Laird of Romano v. Nisbet
Date: 23 November 1609 Case No. No 132.
In a declarator of irritancy ob non solutum canonem, founded on a clause irritant in a deed, payment of the canon was found not relevant to be proved by witnesses, although the duty was small.
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The Laird of Romano pursued one Nisbet to hear a tack declared null, upon a clause irritant, for not payment of the duty of the tack for two terms running together. It was excepted, That he should be assoilzied for the first two terms, because, he offered to prove real offer thereof, debito tempore, by famous witnesses, the duty being only five merks at the term, which the pursuer rejected to receive. The Lords repelled the exception, unless he would prove it by writ or oath of party. It was farther excepted, That the defender should be assoilzied, because, before the beginning thereof, the pursuer ejected him violently furth of the said room, and possessed the same himself; and so could not crave him for the duty thereof. The Lords repelled the exception, and would not receive the said allegeance by way of exception; but prejudice of the pursuer's action of ejection; and found that they would only annul the tack a tempore motæ litis.
