Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Morison of Prestongrange v. His Tenant
Date: 8 November 1677
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Morison of Prestongrange sets a verbal tack of a muirland-grass roum he had to a tenant, for 1000 merks by year. In the winter 1673, the storm was so great and long that much cattle in Scotland died, and the labourers of such roums near lost all their stocking. Amongst the rest, Prestongrange's tenant representing his loss to his master, he told him he should pay but 800 merks. The tenant has ever since possessed it these three years; and being charged for 1000 merks for the years subsequent to 1673, he says he bruiks per tacitam relocationem; and there was a novation of the old tack-duty, and he can pay no more but 800 merks yearly.
Prestongrange answers,—The tack being verbal, and only lasting for a year, there can be no tacit relocation, but where the tack is perfected in writ, which was not here. 2do, The abatement must be presumed to have been singly for that one year, and not for the subsequent, wherein there was no ground to seek it; and the law is clear for this in terminis terminantibus, 1. 15. § 4. D. Locati, where Papinian says, Si uno anno remissionem quis colono dederit ob sterilitatem, deinde sequentibus annis contigerit ubertas, nihil obest domino remissio, sed et Integra pensio illius anni quo remisit exigi potest; which is yet stronger, because the one year compenses the other.
Replied,—Wherever there is a location, a relocation may take place. 2do, If he had a mind, the old duty of 1000 merks should return to be paid for the subsequent years, then he should have interrupted by a warning, or some other declaration of his mind; for relocation is nothing but a presumption that both parties continue in the same mind, will, and inclination; till which be taken off by some contrary act, (et qualis qualis insinuatio voluntatis will serve, though it will not be sufficient to remove on, unless the warning be legal in all points,) the relocation stands. Vide supra, June 1674, George Young against Cockburne, No. 447.
