Deductions, from the rental in a modification or augmentation.
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In the augmentation, modification, and locality, pursued by Mr. Francis Adam, Minister of Cushney, the following questions occurred in settling the rental: 1mo, Whether poultry, which are valued in the tenants’ tacks, ought to make part of the rental? 2do Whether services valued in the tacks, when not exacted, should make part of the rental? 3tio, Whether multures, payable to the master, by the tacks, were to make part of the rental?
With respect to the poultry, some of the Lords were of opinion, that the poultry should make part of the rental; that it may be true, that, in a sale of teinds, they are commonly deducted from the rental, for the encouragement of the purchaser, which is rather an indulgence than law; and that no such deduction ought to be in a modification, heritors often increasing their, poultry, in that very view, to keep their rental low, in a question with the Minister.
But it was the more general opinion, that where poultry were bona fide put into tacks, they ought to be deducted no less in a modification than in a sale; and accordingly the deduction was allowed in the valuation at the instance of Harries of Mabie against the Duke of Queensberry. At the same time, should it appear that an unusual number of poultry were thrown, into a tack, which might shew an intention fraudem facere, the deduction ought to be only allowed of what might appear to be a reasonable number in common usage.
And this was the method the Lords took in this case, where the Laird ofCushney, having an unusual quantity of poultry paid out of his estate, and which were valued in the tacks, the Lords, without requiring any proof, slumped them to 100 hens, to be deducted from the rental, and in which both parties acquiesced.
As to the services, the Lords found, that such services as were for the use of the mains were not to be added to the rental, although they were rentalled in the tack when not exacted; but that, with regard to other services rentalled in the tacks, when not exacted, the value put thereon in the tacks was to be added to the rental.
As to the multures, it was remitted to the Ordinary to hear parties farther.
