Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
The Laird of Smeton and Beinston v. Alexander Smith, Tenant in Waughton
Date: 23 February 1671
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This was a count and reckoning, in which the creditors pressing that Alexander might count to them for the years 1658, 1659, and 1660, which were after the decreet of preference, and in whose prejudice, without taking notice to their rights as he should have done, he made payment of his duty these years to the Laird of Waughton. Against this it was alleged,—That we being in an act of count and reckoning it behoved to be the rule by which we walked; but ita est, my Lord Whytkirk is nominated auditor of the counts for the year 1661 and thereafter, and therefore the defender cannot count hoc loco for these years. My Lord Whytkirk found he should not count for the years 1658, &c. here.
Then he craved we might be reponed against the decreet 1662, wherein he was holden as confest for 30 chalders of victual. After some debate they were content to repone him to his oath.
Then alleged,—That he behoved to count to them all along conform to the tack-duty contained in the tack set him by Waughton in the year 1655, and not conform to the duty in the tack set in 1666; because beside that the Laird of Waughton had no power to set any tacks, being denuded by so many real rights and apprisings, there is likewise a great alteration in the qualities of the victual to the creditor's prejudice, 60 bolls of wheat being converted into bear, and bear into peas, &c. Answered,—The laird was still heritor, and might well renew the tack, especially considering, that any alteration made in the qualities of the victual noways diminished the first tack-duty, because the bear the several years by-past has given as great a price as the wheat. We got the Lords' answer upon this, who found he must count, conform to the tack-duty contained in the last tack for all years since the same, unless the pursuers would offer them to prove that there was collusion betwixt the heritor and tenant, or that the second tack is in open diminution of the rental, or that the mains could have been then set to a tenant who would have paid more than that tack-duty.
Then Alleged,—That he behoved to count, conform to the duty contained in the last tack, not only for the years subsequent to the last tack, but for the years preceding it, ever since his renunciation of the room; because in the tack 1655, there is a clause empowering the tenant to quit the tack in case he find himself too great a loser, but ita est in 166l he renounced; and in 1664 renounced again; upon which renunciations, and in contemplation thereof, this new tack was set to him by the mediation of my Lord Whytkirk and Mr. John Drummond, and therefore this tack must be drawn back to the first renunciation as its proper cause, and must take effect from that time. This my Lord repelled, because before the entry, by virtue of this new tack, the old one, which was set but for eleven years, was expired. Then the creditors contended that Alexander behoved to count to them for the Crawlock meadow and the sheill park; though it be not within any of his tacks, yet being a part of the lands wherein they stand infeft, he must count to them for such years as he possessed it; and the time and years of his possession they refer to his oath.
To this it was answered,—That he not possessing these places the time of the obtaining the decreet, 1662, (which is the ground whereon this count and reckoning proceeds,) he cannot count for them here in this place. 2do, The creditors have no right to them, who stand only infeft in the maynes, and thir were never a part of the maynes. We had the Lords' answer on this also, and they found he could not count for them here; that which moved the Lords was the favourableness of the cause, being a tenant who had bona fide paid it already, though not warrantably, and to the right person, for double payment is most odious in law.
Then it was controverted anent the prices of victual these years for which he was to count; and my Lord declared he must count conform to the middle fiars of Hadington, and not conform to the highest, as Smeton pressed, though for some of it he might have got a greater price. See my informations of this cause.
