Scottish Court of Session Decisions

Subject_1 TACK.
Subject_2 SECT. XI.

In what Cases must the Tenant find Caution for the Rent?

Mr John Burdon
v.
Sir Andrew Dick

Date: 30 November 1683
Case No. No. 188.

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In the action of declarator pursued by Mr. John Burdon against Sir Andrew Dick, wherein Burdon concludes, that the back-tack contained in the contract of wadset granted by him to Sir Andrew may be declared null, upon this ground, that Sir Andrew had not made payment of the back-tack duty for three terms; it was alleged by Sir Andrew, That this declarator could not be sustained, there being no irritancy in the back-tack, and that there was no act of Parliament, as in the case of feu-duties, irritating back-tacks. The, Lords sustained the declarator, and repelled the defence; but allowed Sir Andrew to purge by payment against Candlemas next.

P. Falconer, No. 72. p. 48. *** Sir. P Home reports this case:

1684. March.—Mr. John Burdon having pursued a declarator against Sir Andrew Dick, for declaring of a back-tack contained in a contract of wadset of the lands of Craighouse, to be declared null, in respect Sir Andrew had failed in the payment of the back-tack duties, for the space of three terms; answered, That the back-tack could not be declared null, because it did not contain a clause irritant, and the act of Parliament declaring that all feuers not paying their feu-duties shall amit and tyne their feus, as if there were a clause irritant in their rights, cannot be extended to back-tacks; acts of Parliament being stricti juris, and not to be extended a casu in casum. The Lords repelled the defence, and sustained the declarator; but allowed Sir Andrew to purge, by payment, betwixt and the next term.

Sir P. Home MS. v. 1. No. 612.

*** Fountainhall's report of this case is No. 14. p. 7184. voce Irritancy.