Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.

David Home, and Harbert Gledstanes
v.
James Johnston and his Son

Date: 18 February 1665

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Mr. David Home, indweller in Edinburgh, as cedent, and Harbert Gledstanes, merchant there, as assignee, charge James Johnston, in the Westerlaw of Whitsome, and his son, for payment making to them of 515 merks, as the tack duty of the lands of Whitsome-hill, set to them for three years. Item, to pay sixteen cayne fouls; item, to pay a boll to the hird; item, to leave the hay at their way-going, win, and standing in the rook, &c. conform to a tack granted by the said Mr. David, of the said lands in 1649.

This charge they suspend, 1mo, Because general, noways condescending on the particular years that the said tack-duty is resting, but only general for three years; and, therefore, till such time the chargers condescend on the particular years, the suspenders can make no special obedience. 2do, Esto, the particular years condescended on in the tack were also in the charge; yet the chargers can never distress the suspenders for the whole three years in the tack, but only for two of them, to wit, from Whitsunday 1649 to Whitsunday 1651, seeing the suspenders possessed the lands no longer. The English coming in 1650, and Dumbar being fought, the whole country of the Sheriffdom of Berwick was plundered, and, amongst others, the suspender lost his whole stock; whereon, in 1651, he renounced the said tack to Mr. David, then heritor of the lands; who accepted of the same, by labouring the said lands either by himself or by tenants; the verity whereof the suspenders refer to Mr. David his oath. And as for the two years they possessed, they were ever willing to have counted with the said Mr. David for them, but he declined; this they refer to his oath likewise. But, 3tio, if he would come to count and reckoning with them, they offer to make appear, that he is more nor paid of the said two years duty; partly by money paid to the collectors and subcollectors of the sheriffdom of Berwick for the time, for cess and other public burdens, which Mr. David was obliged to relieve the suspenders of, by the tack, at the least, to allow the same the forend of the said duty; and partly in repairing of the houses of the said lands, which he was likewise obliged to relieve him of; all which summed together makes L.818, whereof the suspenders have discharges and receipts to show. 4to, Mr. David having charged them, they suspended. During the time the said suspension stood yet undiscussed, he assigns it to this man who now charges; igitur, no charge can be sustained at his instance till the first suspension be discussed. 5to, For the cayne fowls, and other remaining heads of the tack, offers to prove them fulfilled by the charger's oath.

To the second reason above written, it was answered for the charger, that he insisted only for 1650 and 1651; and offered to prove, by the suspenders' oath, that he sustained no loss nor vastation for the said two years. The suspenders referred the same back again to his oath. Then, in fortification of the third reason, there are produced discharges for L.818, which is alleged will more nor pay the charger all he can acclaim for the duty of the said two years; at least, what they do not instruct by writ, they are content to refer the payment thereof to Mr. David his oath. He being examined upon this and the second article, he deponed negativè.

Whereupon the Lords suspended the letters simpliciter for the sums contained in the discharges; found them orderly proceeded as to the remaining sums charged for, amounting to L.191, salvo justo calculo, with 80 merks of expenses contained in the tack charged on.

Suspender, Mr. Alexander Spottiswood. Alt. Mr. Jo. Harper. Signet MS. No. 83, folio 63.