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.
William Hay v. James Balfour
Date: 10 July 1700
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William Hay, Collector of the shire of Aberdeen, having bought the lands of Balbithan, from James Balfour, merchant in Edinburgh, for 40,000 merks; and there being 5000 merks of the price yet resting, he suspends the charge on this reason, That the lands being sold to him on the faith of a subscribed rental, he finds, upon trial, that it falls short 250 merks per annum, and therefore he must have retention pro tanto.
Answered—Indeed the disposition does relate to a rental; but it is only in the clause of warrandice that the tacks were not for elusory duties, so that the rental was not the rule of the sale; and James Balfour had but a little before succeeded to them by his uncle's death, and knew not the rent; but the buyer had more opportunity to be acquainted with it, being Collector of the cess within that shire.
Replied,—The rental could not be for regulating the tenants' tacks; for there were lands inserted in the rental that were under no tack.
The Lords, before answer, allowed the witnesses and communers at the disposition to be examined, what was the meaning of parties in signing a rental; as also to prove the value and yearly rent, how far it fell short of that subscribed rental; reserving, to the conclusion of the cause, if James Balfour's heirs shall be liable to make up the deficiency and inleak, in case any be proven.
