Abatement was allowed to the tacksmen of the customs, in consequence of the invasion of an enemy.
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The customs of the Borders being set in sub-tack to Greenhead and others, by the Tacksmen of the hail customs of the kingdom; Greenhead is pursued as representing his father, one of the sub-tacksmen, for the duty the year 1650. It was alleged, That the sub-tack was altogether unprofitable, upon the occasion of the English invasion; so that beasts and other goods were not imported, nor exported that year, as they had been in use formerly. It was answered, That albeit in prædiis rusticis, in case of sterility, vastation, and such other calamities that cannot be avoided, there may be abatement craved et remissio canonis; yet in this case the subject being conductio rei periculosæ et jactus retis, the sub-tacksmen ought to have no abatement, and are in the same case as tacksmen of salmon fishing, who will be liable for the duty, albeit no profit arise to them.
The Lords found, that sub-tacksmen should have abatement; but the question being most quatenus, and concerning the proportion; because, though the sub-tacksmen had undoubtedly loss, yet it was not total; there being some commerce betwixt the kingdoms for that year, some months; it was found in end, upon hearing of parties, that the half of the duty should be abated.
The law is very clear, D. Locati, and the Doctors upon that title, not only in prædiis but in conductione vestigalium, and the like, in case of an insuperable calamity, remittitur canon et merces; but they are not so clear as to the quatenus and proportion of the abatement, when the detriment is not total; but it is just, the abatement should be proportionable to the loss; and accordingly the Lords decided.
Act. Lockhart et Cuninghame.Alt. Sinclair.Clerk, Hay.
Fol. Dic. v. 2. p. 60. Dirleton, No 108. p. 45.
