Scottish Court of Session Decisions

Subject_1 REDUCTION.

Elliot
v.
Riddel

Date: 16 January 1663
Case No. No 33.

Reduction of a decree of the English judge, who had declared an irritancy while the party was prevented by sickness from appearing personally.

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Archibald Elliot of Medlestaid, wadset his lands to John Riddel of Muisely, for a sum of money under reversion, and with a clause irritant, bearing, That if precisely at the term the money should not be paid, in that case, the reversion to be null; whereupon a declarator is obtained for not payment, before the English Judges. There is a reduction pursued of this decreet, upon this ground, That he was not compearing in this decreet; and though in the minutes of process he was marked compearing by his procurator, to whom a day was assigned for purging the failzie, yet at that time he could not compear, because he was lying bedfast; and it were against reason, that the defender by his calamity, should be under such disadvantage, the lands being near double worth the money.

The Lords found the reason of reduction relevant, in respect of the condition of the pursuer for the time, by sickness, and of the exorbitant advantage the defender would have, if the decreet should stand.

Gilmour, No 64. p. 48.