Tenants in use to pay certain rental teind-bolls are liable for the same, altho' exceeding the real teind of the corn prodaced, ay and while they make intimation to the titular, offering him the actual teinding of the corns.
See No. 222.
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In an action at the instance of Lennox of Branshogill against certain tenants of Balfron, for payment of the rental teind-bolls of the lands possessed by them, upon this reason, because they were in use to pay the same divers years preceding the year libelled; the Lords sustained the action, and found the tenants astricted to pay the rental boll, albeit it neither was libelled, nor offered to be proved by the pursuer, that there grew as many corns that year libelled as would extend, in the quantity of the teind, to the rental-bolls acclaimed, without the which the defenders alleged they could not be subject to pay the rental bolls, albeit they had paid the same before, which was but voluntarily done, and could be no reason to make it thereafter necessary; which was repelled, and the Lords found them subject to pay the said rental bolls, albeit the teinds of the corns growing extended not to that quantity; for the Lords found them still debtors thereof, ay and while they made timeous intimation to the pursuer, or the person having right to the teinds, that they would not remain obliged to pay the said bolls, and offer him teinding of the said corns; and so, in this case, the defenders are in worse estate than where spuilzie is pursued; for, in spuilzies, the quantity, of necessity, must be proved, either by witnesses, or the pursuer's oath or the defender's.
Clerk, Gibson.
Fol. Dic. v. 2. p. 427. Durie, p. 195.
