Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
Date: George Colvil, Isobel and Catharine Prestons, and Others, Creditors to Preston of Valeyfield,
v.
George Clerk
2 Februam 1699 Click here to view a pdf copy of this documet : PDF Copy
George Colvil, Isobel and Catharine Prestons, and other Creditors to Preston of Valeyfield, pursue George Clerk, bailie of Edinburgh, and tacksman of that estate, for their bygone annualrents. Alleged,—By the articles of the roup, by which that estate was set to him in tack, he has allowance and retention, out of the fore-end of his tack-duty, of whatever expenses he wares out in finishing the former coal-sinks, or setting down of new ones; and so it is, most of the rent has been expended in recovering the coal. Answered,—Thir annualrents are not infeft in these parts of the lands where the coal is sought, but in other particular roums; and, as they would have no benefit by the coal, so they ought to sustain as little prejudice thereby; and the land-rent, wherein they stand infeft, ought not to be applied for supporting or defraying the expenses of the casual rent wherein they have no interest, but the same was to be adjudged singula singulis. replied,—By the tack, both real and casual rents are set to him jointly and indistinctly per aversionem, and he pays a promiscuous duty for both; and no reasonable man would have engaged for so great a tack-duty in contemplation mainly of the profit to be gained by a coal, if he had not been allowed to retain for his expenses out of the whole head; for, in law, impensœ utiles et
necessariœ ipso jure minuunt fructus rei locatœ et mercedem inde debitum. DuPlied,—The annualrenters protested at the roup that these articles should not prejudge them. The Lords found, That such creditors as were not infeft in the coal, but in roums where the coal was not wrought, had no concern to be burdened with the expense in seeking the coals, but behoved to get their annualrents effeiring to the rents of these roums in which they were infeft.
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