Scottish Court of Session Decisions

Subject_1 TACK.
Subject_2 SECT. I.

Subject-Matter and Nature of Tacks.

Mellerstains
v.
Haitlie

1591. June.
Case No. No. 2.

A tack, though let sine certa mercede, yet was found to subsist till reduced by way of action, because the letter had given under his hand, that he had received (not in yearly duty,bnt unica contextu) a great sum for the same from the tacksman.

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The Laird of Mellerstains set tack and assedation to one Mark Haitlie of certain husband lands, and there was no certain duty expressed in the tack, but that the said Laird confessed that he had received for the same a great sum of money for certain years, and so discharged the said Mark of the same. It was alleged against the tack, that it could give no action, because it was null of the law, viz. locatio et conductio sine certa mercede; because of the law, sicut pretium est de substantia emptionis et venditionis, ita merces locationis et conductionis, propter duorum contractuum similitudinem. Answered, That albeit merces was not in this tack conferred into an yearly duty, yet it was paid unico contextu et una vice, the which could not take away the action founded upon the tack. The Lords found, that the tack of the same form as it was produced, was sufficient to keep the defender in possession against the setter thereof; and if he would have it to be made null, he behoved to pursue it by way of action.

Fol. Dic. v. 2. p. 418. Colvil MS. p. 460.