Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by WILLIAM FORBES, ADVOCATE.

Patrick Strachan, Writer in Edinburgh,
v.
The Town of Aberdeen

Date: 2 February 1711

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In the action of extinction of an infeftment in the lands and fishing of Rutherstane, granted to the town of Aberdeen, in anno 1672, for security of L2800, at the instance of Mr. Patrick Strachan, who was infeft in the year 1674; the Lords found it instructed by documents produced, that the salmon fishing possessed by the town, was under tack for payment of ten barrels of salmon of tack-duty for the year 1679; and, therefore, presumed the rent of the fishing for the following years to be conform to the said tack, and found the town liable to count accordingly, unless they can elide the presumption by a contrary proof and documents: albeit it was alleged for the town, that though the rental of lands (whereof the natural growth and product is more fixed and determined,) is presumed to continue the same: yet in counting for casual rent, as that of a salmon-fishing, a precise rule cannot be laid down, nor so much as a presumptive rule, for subsequent years; but every year's product ought to be positively proved: in respect it was answered for the pursuer, that this pretended difference of casual and fixed rent, as to the manner of counting, hath no manner of foundation: for no rent is so fixed as not to be subject to alteration, and to rising and falling by different seasons and accidents, though some be liable to more hazards than others; and, therefore, the rule of counting must be uniformly the same, till an alteration of the rent be made appear.

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