Payment of rent made at entry, such being the custom of the barony, found relevant against a donatar of forfeiture.
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Earl of Lauderdale, as having right to the forfeiture of the barony of Swinton, pursues the tenants for mails and duties. George Livingston, one of them, alleges, That he must be assoilzied from one year's duty, because he offers him to prove, that it is the custom of the barony of Swinton, at least of a distinct quarter thereof, that the tenants do always at their entry pay half a year's rent, and are free of rent at the term they remove, and so do all along pay a year, at the least half a year before the hand; and subsumes, that he has paid accordingly to Swinton himself, for a term's mail, due for the crop which is after the pursuer's right. The pursuer alleged, Non relevat against him a singular successor, or against the King his author; because, that party that hath right to the land, hath right to the fruits, and so to the rents which are payable for the fruits which were extent upon the land, or growing after that party's right, and no payment before the hand can liberate the possessor from the pursuit of a singular successor; therefore it hath been frequently found, that payment before the hand is not relevant against an appriser, yea even against an arrester; so that the King and his donatar (since their right was established and known) cannot be excluded by payment before the hand to a party who had no right to the land, or to the fruits, that year; otherways both the King and creditors might be defrauded by fore-mails, or by tacks appointing the fore-mail to be paid the first term, (whatsoever length the tack be); 2dly, Any such allegeances were only probable scripto vel juramento. The defender answered, That the case here is not like the fore-mails instanced, because every year is paid within itself; and so the first year, the half at the beginning thereof, and the half at the middle thereof, and subsequent years conform, which must be sufficient to the tenant; otherways paying at Whitsunday and Martinmas, should not be liberated, because the whole year is not run out; or a tenant paying his farms at Candlemas should not be secure against singular possessors for the profit of grass thereof till Whitsunday.
The Lords found the defence relevant, and the custom of the barony to be proven by witnesses, and likewise the payment of the duty in so far as in victual; and also for the money not exceeding an hundred pounds termly.—See Proof.
