No abatement was allowed to tenants out of their rent for exactions extorted from them by the rebels in 1745.
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James Strachan, tacksman of the lands of Fairnyflit and Largie, part of the forfeited estate of Marshall, under the York Buildings Company, took a baron decreet against his tenants therein, for certain sums, as arrear of their rents for crop 1745 and subsequent.
Suspended, for that the rebels, when in possession of the country where these lands lie, did uplift the cess due out thereof; as also did impose on the lands certain sums proportioned by their valuation, or instead thereof, did appoint a soldier to be furnished them out of the said valuation of land; which the tenants were obliged to pay; and indeed paid the same by the charger's order.
The tenants failed in proving the order.
Pleaded for the suspenders, If rebels or enemies shall take possession of an estate, and levy the rents thereof, the tenants ought not to be liable to pay them again to their master; and their taking the rents is not the same thing with taking an indefinite sum from the tenant; cess is payable by the heritor; and tenants paying it are entitled to deduct it out of their rents; so that the rebels taking the cess was in so far taking the rent: As also was their taking the levy-money, which was imposed by them to be raised out of the land.
Pleaded for the charger, Rebels are to be considered as robbers, not as fair enemies; and for what they take, the person from whom they take it must suffer; nor will their declared intention found him in relief; cess is due to the King; and the argument used for the tenants would avail the heritors to retain it from him, which is not allowed them; the levy-money was imposed upon the tenants, as it was to redeem them from personal service; it cannot be said either of these sums was imposed upon the charger, though the execution went against his tenants; as the rebels concussed him to renounce his factory or tack of these lands, and took them into their own possession.
“The Lords found no allowance was due to the suspenders.”
Act. R. Craigie.Alt. Lockhart.Clerk, Justice.
Fol. Dic. v. 4. p. 62. D. Falconer, v. 2. No 208. p. 251.
