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Scottish Court of Session Decisions >>
Calpie v Kennedy. [1631] Mor 12360 (1 February 1631)
URL: http://www.bailii.org/scot/cases/ScotCS/1631/Mor2912360-144.html Cite as:
[1631] Mor 12360
Payment and Consignation how relevant to be proved.
Calpie v. Kennedy
Date: 1 February 1631 Case No. No 144.
Found in conformity with No 132. p. 12355.
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In an action of declarator for expiring of a feu, for not payment of a feu-duty, conform to the clause irritant, contained in the charter, the defender proponing payment of all the terms, for failzie whereof declarator was craved, the Lords found that this payment was not probable by witnesses, as the defender urged that it was, seeing the feu-duty was so small a matter, being L. 18 yearly only, made at sundry times, and therefore, as he alleged, was probable by witnesses, which the Lords found ought only to be proved by writ or oath of party; seeing they found, that the setter of the feu having provided himself of that clause by the charter, the receiver ought to have looked to the manner of security which he acquired, which could not be maintained to the defender, nor subverted to the pursuer, but by the pursuer's own deed, which could not be made known but by his writ or oath.
Clerk, Gibson.
Fol. Dic. v. 2. p. 224. Durie, p. 562.
