Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Sir James Dick of Prestonfield v. John Skaills and Mungo Cochhan
Date: 21 February 1706
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Sir James sets a tack of the house and parks of Cameron, to the said Skaills, tor twenty-one years, for erecting a starch-manufactory there, paying £360 of tack-duty, with this irritancy,—That if the tack-duty were not punctually paid each year, the tack should be void and expire. Skaills turning bankrupt, Sir James raises a declarator of the irritancy and nullity of the tack; in which Cochran compears to defend; and Sir James objecting, that he had no interest, in regard Skaills, the tacksman, was debarred from making over his right to any assignees,—
Answered,—He had power to assume partners, which he was; and that they had expended above £1000 sterling, in repairing the houses, and buying wheat and other materials for their manufactory of starch; and he had no other way of reimbursing himself but by this tack. The Lords sustained his interest.
Then he alleged,—That the condition of the tack was usurary and odious; and at worst was purgeable at the bar. 2do, They must have reparation of their damages, by Sir James's debarring them from the possession, in putting on padlocks upon the doors, and turning his beasts into the park and eating the grass thereof, whereby they are damnified in more than a year's rent.
Answered,—That this being a conventional and not a legal irritancy, it was not purgeable, especially now after two years' failure; neither did Sir James occasion any damage to them; but, being applied to as a justice of peace by some of Skaills's creditors, he secured the doors, that the goods might not be abstracted, but made forthcoming; and their pretence of damage could not stop his declarator, but behoved to be liquidated in a process by itself.
The Lords found the irritancy purgeable, and that their failing to pay the tack-duty arose through Sir James's debarring them from the possession of the houses; and therefore declared they would receive the consideration of their damages hoc ordine. And some proposed, That it not being reasonable for the tacksmen under that pretence to retain the whole, therefore, that they might pay up one year, and let the other lie till the event of the damages appeared; but the Lords left the regulation of that whole matter to the Ordinary, to take trial and probation what was their true damage, and how much should be retained on that account, Sir James restoring them immediately to the possession.
