Consequence when possession of the subject let cannot be attained.
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Wauchope of Edmiston and his lady, as executors to the deceased James Raith of Edmiston, pursued Mr. John Preston, lately of Haltrie, Advocate, for payment of the tack duty for a seam of coal, belonging to Edmiston, and set to him for certain years.
It was alleged for the defender, That he ought not to be liable for the years in question ; because, having entered to the possession of the said coal, and having paid the duty for the time he possessed, he was forced to cease from working, in respect the said coal came to be in that condition that it could not be wrought, partly by reason of the defect of roof, so that the colliers neither would nor could work, without hazard, and partly by reason of bad air.
It was replied, That the defender having accepted a tack of a subject, liable to such hazards, eo ipso he had taken his hazard, and was in the case as if he had acquired a right jactus retis.
It was duplied, That alea and jactus retis, and spes in venditione, may be, and are understood to be sold; but in locatione, spes and alea is not thought to be set, unless it appear by the contract, that the conductor should take the hazard; seeing it is de natura of contracts of location, that fruitio is understood to be given,and set; and that merces should be paid ex fructibus. And where the conductor can not frui, upon occasion of an insuperable impediment, which does not arise either from his dole, or culpa, or negligence, as in this case; remittitur merces ; as is clear, not only when the thing that is set is a subject not liable to so much hazard, but when it is contingent, as when gabells or customs are set, or fishings, or milns, or coals, if there fall out such an impediment, as doth interrupt the fruition and perceptionem fructuum, as if there be pest and war in the case of customs; or if herring should not be got at all; or if upon occasion of inundation, milns should be unprofitable; or coal-heughs should be drowned or burnt.
The Lords, before answer, thought fit, that there should be conjunct probation allowed to both parties, anent the condition of the coal, and the defenders desisting and ceasing from working thereof, and the occasion of his desisting, and if the impediment was insuperable.
