In a lease of a coaliery, the coal ceasing, no rent was found due.
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Wilson in Culross, as assignee by Balfour of Wester-Beath, charges David Mader in Inverkeithing, on a tack, whereby Beath did set to him all the coals and coal-seems within his lands for three years, and took him bound to keep no more but only four coallieries, and to pay L. 42 Scots for each, extending yearly to L. 160 of tack-duty. Mader suspends on this reason, that in the end of the second year of the tack, the coal, the subject set, totally failed, and notwithstanding all the pains and expense both of them were at, no more coal could be found in that ground, which being equivalent to a total vastation, sterility or deficiency, there was neither law nor reason to compel him to pay the tack-duty, no more than if the coal had been swallowed by a chasm, or if a salmon fishing were set, and it should be found, that no salmon swimed within the bounds of that river set in tack: And Dirleton observes, on the 20th November 1667, Tacksmen of the customs of the Borders contra Ker, No 57. p. 10121, that abatement was due because of the devastation then happening by the English invasion in 1650; and lately, George M'Kenzie got an ease of the tack-duty of the excise, because of the dearth and the supervenient law. Answered, This was a bargain of hazard, where he took the coal per aversionem whether existing or not, and is like that which the law calls jactus retis; and therefore, the failing or non-existence of the coal cannot liberate him from the tack-duty, seeing he might have as much profit the two years it lasted, as may pay the whole three years duty. The Lords sustained the reason of suspension in this circumstantiate case, and found it not such a bargain of hazard as to subject him to the tack-duty, seeing he had not exceeded the number of coallieries, and if he had put in any more, he was proportionally to have augmented the rent; so it appeared to be the meaning of parties, that the coal ceasing, the tack-duty should also fall; though in some bargains the party may be liable whatever be the event, and though he get nothing.
