Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Francis Montgomery
v.
The Tenants of Baglillie

Date: 8 July 1676

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Mr Francis Montgomery having pursued a number of tenants for maills and duties, they compear and depone, That, before the years in question, being 1673 and 1674, they were in use of payment of bolls for each acre; but that they having given it over forty days before Whitsunday 1671, the chamberlain, who had power to set the land for the Countess of Levin, then minor, had given them down a firlot an acre: and likewise deponed, That the pursuer, having married the Countess, agreed to give them down a firlot an acre for the years in question.

Which oath becoming to be advised, it was alleged for the pursuer, That the tenants having deponed upon the old use of payment before the years in question, the law presumes, without further probation, that the same duty is continued per tacitam relocationem; and the getting down thereof is an exception only probable by writ, or the pursuer's oath: but is not a quality to be proven by the tenant's own oath; which would be of great prejudice to all heritors, who, for the most part, have no written tacks; and, when they pursue their tenants for their rents, they might, by their oaths, upon pretence of downgiving, abate them at their pleasure.

It was answered for the tenants, That they might simply have deponed, That the quantity of their rents, for the years in question, was so much as now they acknowledge; and might have denied the quantities libelled: but having been desirous to clear themselves, they have both deponed what the old use of payment was before these years, and what their duty was for these years: which is no extrinsic quality, but is a proper answer to the libel; which is not what their rents were before the years in question, but what they were during the years in question: And, albeit the pursuer might have libelled upon the worth of the lands, against naked possessors, which would have been relevant to have been proven by witnesses, and would have forced the tenants to except upon a tack, agreement, or use of payment, and prove the same; or if the pursuer had instructed by writ, the former rent by tack, decreet, or discharge, the same would have sufficiently instructed, that, by tacit relocation, the rent continued the same, and put the tenants to prove, by the master's oath or writ, the new agreement or downgiving. But having done neither, but simply referred the downgiving of the rents to the tenants' oaths, it is most proper for them to depone that formerly they were greater; but that, by a later agreement, for the years in question, they were less. And it would be of great inconvenience to poor tenants, who frequently have no tacks in writ, that, if they did acknowledge a former use of payment, they behoved to prove the abatement; when, most ordinary, singular successors insist for proving the quantities of rent by the tenants' oaths, who could know nothing of abatements, and would not suffer their authors' oaths to be taken upon any such agreements to their prejudice.

The Lords found, That any abatement given after warning-time, when the tenants had continued to possess per tacitam relocationem, was not a competent quality proveable by their oaths: but, if the agreement was before warningtime, the agreement was intrinsic, as a part of the verbal tack; and the tenants might depone thereupon, without further probation: But found, That the tenants here had not deponed upon the time of the agreement, which was the material point as to the manner of probation; and, therefore, suffered the pursuer yet to resile from their oaths, and prove, by witnesses, what the land was worth of yearly rent the years in question. In which case the tenants might either admit it to his probation, or except upon an agreement, and refer it to the pursuer's oath.

Vol. II, Page 442.