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There being a mutual contract wherein Enterkin sets a tack of coal to Millar, contract or and the tack-duty regulated by the number of coal-hewers to be employed by the tacksman, viz. if six were employed, then 600 merks to be the tack-duty; but if more or less than six, then 100 merks for each was to be added or deducted; and Enterkin having charged on this, the question, at discussing, turned on this single point, viz. Whether, by this tack, the tacksman is liable for 600 merks of yearly duty, though he employed no coal-hewers at all? And it was
Alleged for the charger, That as the suspender could not deny but he was obliged to work, since he had taken a tack of the coal, so also, by the nature of the tack, having stipulated the liberty to work with six coal-hewers, Enterkin could have obliged him to employ these in the work; for contracts of this kind are mutual, and so, as Enterkin was obliged to allow him six coal-hewers, he also must be understood obliged to keep them at the work, if the coal-wall would serve; otherwise, he might have made the tack wholly elusory, even suppose he had gotten a sufficient coal-work; and therefore, this being the rule and standard which both parties fix upon, though with a liberty to the tacksman to employ more, as he thought fit, but with no freedom to keep under that number six, in the event that has happened, that must be the stated number, as being what the tacksman himself expressly stipulated liberty for, and for which he is obliged to pay the setter. Let the case be, a master setting a piece of ground, with liberty to sow six bolls of corn, and the decision will be very plainly in the master’s favours, though the tenant never sow any : Now, the case is the same here, for the coal would have afforded as certain a product as the ground.
Answered for the suspender, That, by the contract, he is not bound to employ six coal-hewers, and consequently not to pay 600 merks of duty; but that, by the contract, he might have employed one or two coal-hewers, and then paid only 100 or 200 merks; and having employed none at all, he could not be liable in more rent than if he had.
Replied for the charger, That is by the suspender’s fault that they did not work, since he never opened the ground; and as qui dolo desiit possidere pro possessore habetur, so since, by the suspender’s fault, the coal-hewers were not employed, in so far as concerns the suspender, they must be held as workers.
Duplied for the suspender, That by the tack there was an express provision, that in case the tacksman should instruct, by the coal-hewers and oversmen’s oaths, and producing of the account-books, that there were not the full number of six working, as also the time of any coal-hewer’s absence, he shall be only bound to pay proportionally to the coal-hewers that worked; which imports a power to work with as many or as few as he thought fit; and so the number cannot be liquidated to six. And though the servants and books, &c. are agreed upon as a sufficient evidence of the deficiency of the number, yet the tacksman is not thereby precluded from other means of probation of this point.
Triplied for the charger, That this exception confirms the rule, that the suspender was expressly obliged to work with six; for the provision imports an exception, and an exception implies a preceding rule; and as the rule is hereby established, so the suspender is not in the terms of the exception, which only concerns the case where the coal was working, an oversman employed, a count-book kept, &c. which is the particular manner of probation fixed upon. But the suspender cannot subsume upon any such probation, nor does it in the least concern the case; for here the suspender has wrought none, and the provision is upon supposition of his working, which cannot be applied to the event which, by his fault, has fallen out.
The Lords found the letters orderly proceeded.
Act. Boswel.Alt. Hay.Clerk, Gibson.
Bruce, v. 1. No. 113. p. 141.
