Annuitants of the York Buildings Company v. Sir Archibald Grant, &c
Date: 26 July 1737 Case No. No. 233.
Import of a clause in a tack to pay the tack-duty free of certain burdens particularly therein specified, and all other deductions whatsomever.
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By a tack which the said Company set to Sir Archibald, &c. the lessees were bound to pay to the Governor and Company a yearly tack duty of £.4000 Sterling, “free of cesses, ministers' stipends, poor's money, and all other public burdens, and other deductions whatsomever, imposed, or to be imposed, &c.”
The tacksmen having paid certain feu-duties and ground annuals, payable out of the estates that fell under the lease, this question occurred, Whether, notwithstanding the above clause, they could have allowance thereof out of their rent?
For Sir Archibald, it was pleaded: That the words in the tack, other deductions, must be understood of such deductions only as are of the nature of cesses, ministers, and school-masters' stipends, &c. specified in the preceding part of the clause; i. e. of such casual burdens as from time to time might be charged upon the estates, and not of feu-duties or ground annuals, which are constant and certain, and are rather a reserved rent to the superior, than burdens upon the remaining rent belonging to the vassal, in consequence of his property; which construction of the clause is further confirmed by the words “imposed or to be imposed” immediately subsequent to “public burdens, and other deductions whatsomever,” as it could not, with any propriety, be said, that feu-duties are a burden imposed: Nay, if a contrary construction were to take place, it might be pretended, that even payments made to creditors of the setter, who had infeftments of annuity or annualrent on the lands, ought not to be allowed as part of the tack-duty; because the tacksmen are bound to pay it, without any deduction, which would be too gross to maintain; and, although payment to the creditors of the setter may be said to be the same as payment to himself; yet it is also true, that all payments, made to those who have a right to claim them out of the lands, are equal to payments made to the setter.
Answered for the annuitants (who had come in place of the Company:) The words of the clause are obvious, as well as the intention and meaning of the parties, viz. That the neat tack-duty agreed upon should be paid into the Company, without retaining any part of it, upon acconnt of public burdens, or any other deduction whatsomever; therefore they are not bound to take notice what may be the cause or occasion why the tacksmen pretend to this deduction; by the acceptance of the tack, they have renounced all such deductions as might any ways stop or hinder the payment of the tack-duty; 2do, It is not so obvious, for what reason the tacksmen should limit the import of the word deductions, to be no other but such as are of the nature of those in the preceding clause; if such had been the meaning, it had been sufficient that the clause bore “cesses, ministers' and school-masters' stipends, poor's money, and all other public burdens;” but there is added, “and all other deductions whatsomever,” to show that something more was intended than such casual burdens, and to these burdens, particularly specified, the words “imposed or to be imposed” may properly be referred; though, were it necessary, these words should be applicable to other deductions, as they are not, a feu-duty, constituted before the tack, might well be said to be imposed, and to affect the rents as much as ministers' stipends, &c.; more especially, considering the tacksmen behoved to know some prestation was due to the superior, and that the lands might be subjected to servitudes of multures and pasturage, which could no more properly be said to be imposed than a feu-duty; but, upon account whereof, it is certain there could be no claim for deductions, as the tack stands.
The Lords found, That the clause, "and other deductions whatsomever, &c. does not preclude the tacksmen from being allowed the payments made by them of feu-duties and ground annuals, in their articles of discharge.
