Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

The Lady Samfoord
v.
Alexander Walker

Date: 8 January 1674

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The old Lady Samfoord having set a tack of the lands of Nether Samfoord to the said Alexander, in October 1670, for the space of three years, she having died before Whitsunday, which was the term of his entry by the tack:— this Lady Samfoord, who succeeded to the liferent of the lands by her death, after expiring of the years of the tack, did pursue the tenant for two chalders of victual more than the tack-duty upon the ground,—that his tack was null, the granter being dead before the term of his entry; and so he was liable to the full duty of the lands, which did exceed the duty of his tack by two chalders of victual, conform to a tack produced, granted to a former tenant.

It was alleged for the tenant, That he could not be liable; because the pursuer, having voluntarily suffered him to possess during the years of the tack, and received from him so much rent as, with the minister's stipends, and public burdens, which he had paid, did extend to the duty of his tack, and no more, she did homologate the tack, and so could not quarrel the same; especially the former tack, being twenty years ago, and the liferenter herself having possessed and laboured the same until the lands were much deteriorated; in consideration whereof she gave the abatement on the new tack.

It was replied, That the pursuer's receipts could infer no homologation, because they were only partial of what she had received, and not of the full tack-duty.

The Lords did find it relevant, that the pursuer knew of the defender's tack, and, notwithstanding, suffered him to possess without any interruption, and ordained her to give her oath upon the verity of her knowledge; but, if she denied the same, they declared they would grant commission to some neighbours, to try if the lands were deteriorated the time of the last tack, or were in as good condition as when the former tack was granted.

Page 391.