A tack was set, bearing, ‘certain lands containing 48 measured acres, with pasturage and pertinents, every acre to pay six firlots.’ The setter insisted in a declarator, that there were 60 acres, and that the tacksman should pay accordingly; which was repelled, in respect the extent of the acres was not taxative, but designative.
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There being a tack set by Halliburton of Inverleith to Isobel Borthwick and her husband, for certain years, bearing, ‘Headshill containing forty-eight measured acres, with pasturage and pertinents,’ Mr James Rochead having now right to the estate of Inverleith, pursues a declarator that there were sixty acres of land, and that the tack bearing every acre to pay six firlots, the defender should remove from twelve of these acres, or pay therefor.—The defender alleged absolvitor, 1mo, Because the tack mentions the acres to be measured, which being acknowledged by the heritor, he or his successors, could never crave a measuring again; 2do, The tack-duty is not for every acre of the land, but for every acre of 48 acres, and the land hath a common designation of Headshill; and the mention of the acres is not taxative but designative; and the very like case was so decided betwixt Hamilton and Robertson in July last.—It was answered, That this tack being locatio, the law says, si mensor falsam mensuram dixerit it does not prejudge the setter; and as to Hamilton's case, the question there was for repetition; which the Lords sustained not against the setter, having spent it bona fide.—It was replied, That ratio decidendi in that decision, was the same that the quantity was not taxative; and here the number of the acres is not upon the assertion of a metter, but upon the acknowledgement of the setter.
The Lords found, That the extent of the acres here was not taxative, but designative, and therefore assoilzied from the declarator.
