Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 I sat in the Outer-House this week.

Fothringham of Pouey
v.
Hunter of Burnside

Date: 18 July 1711

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Fothringham of Poury feus off a part of his lands near the castle of Brughty, with the fishings, to Hunter of Burnside; and the reddendo of the charter is, L.190 Scots, and a barrel of salmon, full red and sweet, yearly. Before the Union, the superior accepted of L.80 Scots as the price of the said barrel; but the measures being now altered and augmented to the Berwick bind, which is larger than our former barrel, Poury pursues Burnside, his vassal, to deliver him yearly a barrel conform to the present gauge and standard; and that it be sufficiently packed and cured with Spanish, French, or Bay salt, for export, or else L.42 Scots, as the present value thereof.

Alleged for the Vassal,—We agreed upon a liquid price; and so that part of my feu-duty comes to be pretium cestimatum, viz. L.30 Scots; and therefore you can crave no more. Answered,—Whatever liberation that may operate for bygones, it can never oblige him in time coming; but he may crave ipsa corpora. And such is the mutual confidence betwixt superiors and vassals, by the feudal law, that vassals must not detort their superiors' lenity to their prejudice.

The Lords found the L.30 was a sufficient exoneration for those years wherein it was paid and accepted, but no farther.

2do, alleged,—That his rule of payment must be the measure of the barrel the time of giving out the feu; so that, if any supervenient law or custom augment that measure, it cannot prejudge the vassal to augment his feu-duty; no more than if a law had made the salmon barrels less, would that have obliged the superior to accept that lesser measure.

Answered,—By our Acts of Parliament, the measures of salmon barrels have frequently altered. By Act 76th 1477, salmon were to be packed in barrels of the measures of Hamburgh; then, by the Act 110th 1487, they are appointed to hold 14 gallons. By the 57th Act 1573, they are to contain 12 gallons of the Stirling pint; and then, by the 5th Act 1693, they are brought down to 10 gallons; which the coopers are enjoined strictly to observe. So that, as the law alters, so must his barrel of salmon; which cannot be paid by a measure prohibited by law.

The Lords found, the augmenting of the barrel, by the changing our measures into the English, at the Union, cannot augment the vassal's feu-duty; but it must be paid conform to the standard that obtained at the time of the charter.

3tio, The Vassal alleged,—This barrel of salmon was for the superior's consumpt in his family; and, being for that use, Scots salt was sufficient; and his charter not mentioning that it was for export, he was not bound to rouse them with salt upon salt.

Answered,—He is not concerned what I do with it. I may either export it or consume it in my family; though few will keep a whole barrel for that use. Neither will our Scots salt preserve them a year; but he declares he is to send it abroad; and so, by law, must be cured with foreign salt, under a penalty. Yea, by an Act of Privy Council in 1688, the curing them with Scots salt is discharged; as tending to the disgrace of the nation, when presented in foreign markets; and the foresaid act of King William renews the same prohibition.

The Lords found the superior was not obliged to accept of it as cured with Scots salt; but that, in terms of the said 5th act, it must be packed with foreign salt as for export.

4to, The Vassal alleged,—If so, then I must have allowance of the draw-back given for encouraging export. Answered,—I must have the benefit of the drawback; for, if there were a duty or imposition laid on them, (as once there was at exporting,) I, as proprietor, behoved to pay it; even so here, a pari, qui sentit ineommodum debet et habere commodum.

The Lords found the drawback belonged to the vassal. Some proposed that it might be left to the superior's option, yearly, either to accept a barrel cured with Scots salt, without paying the drawback, or with foreign salt, deducing the drawback. But it was thought this alternative would be the seed of a yearly plea and contest; and therefore it was laid aside. The vassal's disadvantage was, that he had feued that land, mainly in contemplation of the fishing salmon at the mouth of the Tay and near Dundee; and it had much failed and decayed several years bygone.

Vol. II. Page 661.