[1696] Mor 673
Subject_1 ARBITRIUM BONI VIRI.
Date: Margaret Lumsdin, Relict of Robert Bell, Writer to the Signet,
v.
Home of Linthill, Mary Hay, Relict of Nisbet, Rochead, and Whitsomhill
15 July 1696
Case No.No 5.
A tack of teinds was granted for life, and blank years thereafter. The blank was scored, and the Lords did not fill it up, but found the tack expired.
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The point was about the import of a tack of teinds set by a minister during his life, and for years thereafter; which the tacksman contended, ought to be expounded in terminis juris, and so filled up by the Lords tanquam boni viri, and conform to the meaning of parties; and by the acts of Parliament, a beneficed person may set tacks not only during his life, but also for five years thereafter, if with the consent of the patron, by act 5th Parl. 1617; for quod inesse debet inesse præsumitur: And lawyers say, quæ sunt usus et consuetudinis veniunt in contractibus bonæ fidei, et interpretat'io facienda est ut actus potius valeat quam pereat; and though this seems to make it without a definite ish, yet this may be defined either per se, vel relatione ad aliud, as here parties are presumed to have had an eye to the law; and it being ‘years’ in the plural, that must be two at least; according to the rule in the common law, locutio pluralis duorum numero contenta est.—Answered, That tacks are stricti juris, and not to be extended beyond their precise words; and the incumbent non fecit quod potuit, and blank years is no years.——The Lords finding the blank was scored, they thought the same could not be now supplied nor filled up; and therefore found the tack expired with the death of the setter.
Reporter, Crocerig.
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