One having a tack of teinds, assigned the heritor to his own teinds, and obliged himself to procure new tacks at the expiration of the former, or refund a sum of money paid with this view. This found no alternative obligation. He was bound to grant a new tack, if in his power.
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In an action at Sir Patrick's instance against Balmerino, for procuring new tacks of his teinds of a part of the lands of Restalrig, belonging to him, conform to an obligement of Balmerino's father, where (who) for sums of money, had assigned Sir Patrick's father to the tacks of his teinds, which are now expired, and obliged himself to procure new tacks. It was alleged for Balmerino, 1mo, That the obligement to procure new tacks, was alternative either to do the same, or to refund the money then paid, which he is willing to do, et in alternativis electio est debitoris; 2do. It was not now in his power to perform the same; the rights of the said teinds being settled in the person of his son, the Master of Balmerino, who was now married, and extra familiam, and so all that he could be obliged to in law, was to refund the money. It was replied to the first, that the said obligation was not alternative, and could not be so construed, seeing the Lord Balmerino having disponed a right for a sum of money received, so long as it is in his power to grant the same he ought to perform; and the adjection with (of) payment of the money, can only be interpret to take place, in case he should not be able to procure that right from a third party. It was replied to the second, that albeit the Master was married, yet being the apparent heir of his father, it was not to be imagined but he had so much power over him as to prevail with him to perform. The Lords found, That the defender was not in the case of such an alternative, as he had it in his option, it being emptio et venditio, and in the first place, he being obliged to grant a right, which, so long as it was in his own power, he could not refuse to perform, and that the pretended alternative was only made in respect the right might depend upon another, in which case, the refunding of the money was only loco damni et interesse; but, as to the second point, it was not denied, it being referred to some of the Lords to agree it.
Fol. Dic. v. 1. p. 35. Gosford, MS. No 631. p. 365.
