Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Futt v. Lord Ruthven
Date: 12 January 1671
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This was a pursuit for count and reckoning, at a tenant's instance against his master; wherein, 1 mo, the penalty of a tack set by my Lord to him being craved, in regard my Lord had set these very same acres to another; it was replied, He could not be heard to crave that failyie now, because the tack was now expired, and he had ever paid him the tack duty without any reservation or reclaiming against the same.
It went to interlocutor whether this was a passing from the failyie or no. I think it was.
2do, He craved defalcation of acres, in regard by inundation they were taken away from him, and alluvione were adjected to my Lord's lands on the other side; so that he reaped the benefit thereof, by shearing the grass and mowing the hay that grew thereon.
My Lord Castlehill found an inundation only not relevant, unless it had been such as had occasioned a total sterility, l. 15,p. 2 and 3, D. locati: but for the last part anent the alluvion, he sustained it relevant.
