Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION. 1684 and 1685.
The Administrators of Heriot's Hospital v. Sinclair and Stevenson
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1684. February 5.—The Magistrates and Ministers of Edinburgh, as administrators of Heriot's Hospital, pursue a reduction of a tack set by them, in 1678, to Sinclair and Stevenson, of the Canon-mills, as done by private contrivance, and to the lesion of the Hospital; (who enjoy the privilege of minors;) it being set for 2300 merks for nineteen years, whereas 1000 merks more yearly was offered; and it was set in sundry particulars contrary to the statutes of that Hospital: and though it was answered, that the tacksman was not bound to know these private statutes, yet scire tenetur conditionem ejus cum quo contrahit; and Heriot, a donor, might annex what qualities and conditions to his gift he pleased.
The Lords, on Castlehill's report, before answer, ordained the foundation and erection, or mortification, of Heriot's Hospital, with their statutes, to be produced.
Vol. I. Page 266.
1685. March 10.—The reduction, mentioned 5th February 1684, pursued by the administrators of Heriot's Hospital, against Stevenson and Sinclair, of a tack of the Canon-mills, for 19 years, because of the enorm lesion, &c. being reported by Castlehill; the Lords, before answer, ordained probation to be led, what thir mills actually paid before the setting of this tack; for they considered there was some pique in this cause against the former Magistrates; and that it was not a good rule in locations, what they might have paid, or what they would give now; as also to try the custom anent appending the Hospital's seal to all their deeds, if it be essential or necessary.
The words were:—The Lords, before answer, ordain trial to be taken anent the method, which has been used in setting of tacks of thir mills belonging to Heriot's Hospital, if the samen was done by a public roup, or by intimation, and after warning of all the administrators of the Hospital; and what has been the custom of appending the seals to tacks of the mills or lands belonging to the said Hospital; and if the same has been in desuetude since making of the statutes; and also what rent has been paid for thir mills before the year 1666; and if the same was greater than the tack-duty now paid by the defender; and how long that rent was paid.
And, on the 20th of March, the Lords, on a bill given in by the Town of Edinburgh, allowed them farther to prove, before answer, that, before the setting this tack, responsal persons offered more tack-duty. 2do, If it was set at the time of the old treasurer of that Hospital his going out, and the coming in of a new one. 3tio, If the treasurer used to subscribe their tacks.
Then, on a bill given in by the defender, the Lords allowed her also farther to prove,—lmo, That, in 1666, the then tacksman's undertaking to pay 500 merks more than she now pays, helped to break him. 2do, That the importation of malt from Musleburgh was then discharged, and afterwards allowed to the Duke of Lauderdale; which makes thir mills less worth.
