If one is bound to pay the duties “addebted and accustomed,” these terms must be taken conjunctly.
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Old Lesmore contracting with the relict of his oye, dispones certain lands to her in satisfaction of her conjunct fee, which she accepts, and in the same contract she obliges her to relieve the Laird of the teind duties, addebted and accustomed to be paid out of the said lands; whereupon she being charged to relieve the Laird of these teind duties, and for that effect to make payment of a particular quantity condescended on, as has been in use these diverse years to be paid by the tenants of these lands, before this contract; and she suspending, that albeit the tenants of these lands have been accustomed to pay the quantity charged for, yet that is not sufficient to make her obliged thereto; for that cannot be the mind of the contract, that she should pay any further for the teind duties of the whole barony, whereof these lands contained in this contract are but a part, but only that she should pay a proportion of the whole duty, effeiring to the proportion of her lands to the quantity of the whole barony; for albeit the Laird, who was heritor of the whole barony, might appoint a tenant of any part of the lands of that barony to pay the teind duty addebted for the whole, and allow that payment in the first end of the condition betwixt his tenant and him, yet that was no just cause to astrict her to do the like; neither did her obligation contained in the contract bind her thereto, she being bound to pay the teind duty addebted and accustomed; so that albeit the tenants of these lands had formally paid the whole, yet except the whole were addebted for these lands, she cannot be subject thereto, but to her proportional part only. The Lords found this reason relevant, and found, that these words in the contract, viz. to relieve the Laird of the teind duties addebted and accustomed to be paid, could import no further, but that she ought to relieve him of that proportion of the duties effeiring to the quantity, with the which the whole barony is affected, and as these lands answer to the quantity of the barony, and that the custom of payment of the whole duties out of the lands, cannot burden her with the whole, except that the whole duties acclaimed were due to be paid for the said lands alone; and found, that these words, addebted and accustomed, ought not to be severally understood, but as conjoined.
