Requisition inter rusticos allowed to be proved by witnesses.
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By tack between the late Earl of Dundonald and James Alexander, of date the 29th October 1726, the Earl let to him the lands and mailing of Candraas for 19 years, with a break at the end of the first seven years; and, by a clause in the tack, the Earl was obliged to inclose the said lands, the said James being obliged to uphold the dykes. For which causes, the tenant became bound to pay the yearly rent therein mentioned.
By virtue of this tack, the tenant entered into the possession, and, without taking the benefit of the break, paid his rent during the Earl's life. But being charged at the instance of the present Earl and his curators, for the crops 1739 and 1740, he suspended on account of the damages he had sustained by the Earl's not having inclosed the lands, as he was bound, which he valued at L. 100 Scots yearly. And, at discussing, on 2d July 1741, the Lord Ordinary, “In respect the tenant had possessed the ground from the year 1730, notwithstanding his being free at the end of the first seven years, and had made no requisition to have the ground inclosed, but paid up his rent, in terms of the tack; repelled the reason of suspension, and found the letters orderly proceeded; but, in regard the suspender does now insist to have the ground inclosed, found that the charger ought forthwith to inclose the same.”
Against this interlocutor the suspender reclaimed; and, on advising petition and answers, on the 26th of November 1746, it appeared that the charger had obeyed the Ordinary's appointment for inclosing the ground; and, as to bygones, no regard was had to what was pleaded by the suspender, that, esto he had made no requisition, the Earl was liable; for, though where a particular day is fixed for performance, dies interpellat pro homine; and though quod sine die debetur, presenti die debetur, so that presenti die peti potest, yet till requisition is made, dies non venit. But all the question was, How far he could be allowed to prove by witnesses, that he had required the late Earl, which he averred he had done?
As to which, the rule was agreed to be, that wherever requisition is necessary, if there be no instrument taken on it, it can no otherways be proved than by the writ or oath of party; agreeable to what we have in Stair's Instit. tit. Accessory Obligations. Nevertheless, it was doubted, whether, in this case, there might not be an exception on account of the rusticity of the party; and, therefore, he was, before answer, “Ordained to give in a condescendence of the time when such requisition was made, and of the witnesses by whom he proposed to prove it;” and, of this date, he was “Allowed a proof before answer.”
Fol. Dic. v. 4. p. 161. Kilkerran, (Proof.) No 9. p. 444.
