Tacksman must enter, to stock and possess the ground.
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Randifuird, setting a tack to one of his tenants of certain lands, for the space of 9 years after his entry, which, by the tack, was appointed to be at Martinmas 1622, pursues, by way of action, the tacksman to enter to the room, and labour the same, which action is intented in January, 1623, after the term of entry appointed by the tack. The defender compears, and alleges, that this action is a novelty, and ought not to be sustained; for albeit the tack was set to him of the room, yet he ought not to be compelled to enter thereto, or labour the same, but at his own pleasure; for if he should never enter nor labour, or if he should suffer the same to lie lea for grass, it was alike to the pursuer; for he could have no action upon the tack against the defender, but for the tack-duty, which the pursuer could not ask but after the terms of payment of the tack being past, at which time the defender should answer him, as reason and law required. The Lords repelled this allegeance, and sustained the action against the tenant to cause him to enter to the occupation and labouring, of the room, that thereby the defender might enter and plenish the same with goods and corns, whereby the ground might be more answerable to the master for payment of the duty of the tack.
Act. Mowat.Alt. Oliphant.
Fol. Dic. v. 2. p. 424. Durie, p. 52.*** Haddington reports this case:
A tack being set by Randifuird to Crombie, the entry to be at Martinmas 1622,Crombie was pursued to enter, and labour the ground. He excepted, That he was not bound to enter and labour, but to pay the duty. I reasoned, That the acceptation of the tack made him have right to enter, and so denuded the setter, that could neither lawfully labour himself, nor set it to any other, and that the defender’ might be compelled to enter and labour the ground, to the effect the crop and goods might be poindable for the duty, and the setter not forced to want, by leaving his lands waste, and only to have a dyvor tenant to crave by personal action; which opinion was allowed by all the Lords.
