Payment of a different species of victual than that mentioned in the tack of teinds, does not destroy nor innovate the tack, nor oblige the tacksman to continue to pay disconform to the tack.
Click here to view a pdf copy of this documet : PDF Copy
In a pursuit for payment of rental bolls of teinds, being elided by a tack, for payment of the bolls therein contained, and it being replied, that since the tack the defender had paid other qualities of victual, divers years, than the species contained in the tack, viz. wheat, whereas the duty of the tack was bear, where by the pursuer alledged, that the defender had prejudged his tack, either to make it fall, or at least to make him subject, during the years thereof to run, to pay that same quality, and sort of victual, which he has been used to pay the preceding years, since the said tack; this reply was not respected, but the exception notwithstanding thereof was sustained; for the Lords found, that the tack was not prejudged by the tacksman's payment of other sorts of victual, than was conditioned by the tack, the change of which quality derogated not to the tack, neither did the said payment bind the payer, to pay the quality which he paid for any bygone years, or for any years of the tack to run, there being no condition alledged, that the like payment should be made in time coming; and so the concession acknowledged by the defender of the said change of the quality of by-gone years, was not found sufficient to oblige him to continue in that payment in time coming; but if the tacksman had paid a greater duty in quantity than his tack duty, it is commonly estimated to be prejudicial to the tack, the same bein proved by writ or oath; which wanted not the same scruple, for the tacksman may, upon many considerations, pay more than he is oblidged by his tack, and yet have no purpose but to keep his tack in integrity; as when the setter may become depauperat, or when the tacksman has made an easy purchase, or otherwise may be moved voluntarily to do more than he can be obliged to do in law; in which case it were hard his tack should fall, for his kind dealing. But where this is admissible, it would appear necessary to be alledged and proved, that that payment of a greater quantity was expressly conditioned betwixt the parties to be made for the lands, or teinds set in tack, and consented to betwixt them, and conform thereto, payment was made eo nomine, viz. as for the duty addebted therefore.
Act. Hope, Aiton, & Cheap.Alt. Stuart & Russel.Clerk, Hay.
Fol. Dic. v. 2. p. 428. Durie. p. 516.
