670 



L A 



Law 



ef Scotland. 



and salmon 

 ishing ; 



and forest- 

 ry 5 



and now 

 also res 



Pertinents 

 belong to 

 vassal. 



Privilege of 



barony, 



what. 



Right to 

 levy rents. 



Tack or 



lease- 



Verbal 

 lacks. 



What is 

 included in 

 the right 

 of tack. 



Tack a arc 

 ttricti ju- 



crown as regalia, unless they be specially conveyed. 

 Gold and silver mines are of this sort ; the first uni- 

 versally, and the other where three half-pennies of 

 silver can be extracted from the pound of lead, 1424, 

 c. 12, (three half-pennies in the reign of James I. is 

 equal to about two shillings five pennies of our pre- 

 sent Scots money, according to Mr. Ruddiman, Pref. 

 to Diplom. Scut. p. 82.) These were by our ancient 

 Jaw annexed to the crown ; but by an unprinted act, 

 1592, No. 12, they are dissolved from it; and every 

 freeholder, (that is, as to this question, every proprie- 

 tor, though he should hold his lands of a subject, 8th 

 Dec. 1739, D. Argyll,) is entitled to a grant of the 

 mines within his own lands, with the burden of de- 

 livering to the crown a tenth of what shall be brought 

 up, 12th Jan. 3750, E. Hopeton. This unprinted sta- 

 tute mentions also tin and copper mines, as if these 

 were inter regalia. 



34. Salmon fishing is likewise a right understood to 

 be reserved by the crown if it be not expressly grant- 

 ed; but forty years possession thereof, where the lands 

 are either erected into a barony, or granted with the 

 general clause of fishings, establishes the full right of 

 the salmon fishing in the vassal. A charter of lands, 

 within which any of the king's forests lie, does not 

 carry the property of such forest to the vassal. 



35. All the subjects which were by the Roman law 

 accounted res publiae, as rivers, highways, ports, &c. 

 are, since the introduction of feus, held to be inter re- 

 galia, or in patrimonio priiicipis ; and hence encroach, 

 ment upon a highway is said to infer purpresture. 



36. The vassal acquires right by his grant, not only 

 to the lands specially contained in the charter, but to 

 those that have been possessed forty years as pertinent 

 thereof. 



37- As barony is a nomen universilalis, and unites 

 the several parts contained in it into one individual 

 right, the general conveyance of a barony carries with 

 it all the different tenements of which it consists, though 

 they should not be specially enumerated (and this holds 

 even without erection into a barony, in lands that have 

 been united under a special name.) 



38. The vassal is entitled in consequence of his pro- 

 perty, to levy the rents of his own lands, and to reco- 

 ver them from his tenants by an action for rent before 

 his own court, and from all other possessors and intro- 

 mitters, by an action of mails and duties before the 

 sheriff. He can also remove from his lands tenants 

 who have no leases, and he can grant tacks or leases 

 to others. A tack is a contract of location, whereby 

 the use of land, or any other immoveable subject is set 

 to the lessee or tacksman for a certain yearly rent, ei- 

 ther in money, the fruits of the ground, or services. 

 It ought to be reduced into writing, as it is a right 

 concerning lands. Tacks, therefore, that are given 

 verbally, to endure for a term of years, are good against 

 neither party for more than one year. 



39. The tacksman's right is limited to the fruits 

 which spring up annually from the subject set, either 

 naturally, or by the industry of the tacksman ; he is 

 not, therefore, entitled to any of the growing timber 

 above ground, and far less to the minerals, coal, clay, 

 &c. under ground, the use of which consumes the sub- 

 stance. All tacks were, by 1449, c. 7, for the encou- 

 ragement of agriculture, declared effectual to the lacks- 

 man for the full time of their endurance, into whose 

 hands soever the lands might come. 



40. Tacks necessaiily imply a delectus persona:, a 

 choice by the setter of a proper person for his tenant. 



houses. 



Hence the conveyance of a tack not granted to assignees, 



is ineffectual without the lan/llord's consent. ofSrotlai 



41. It is not a fixed point whether a tacksman may "~Y" 

 subset the lands without an express power 'of subset- Tackw.a 

 ting. Lord Stair, II. 9, 22, and Mackenzie h. I. affirm ma y 8ub ' 

 he cannot ; but it was adjudged, Hare, 955, that he 8et> 

 might, even where the tack excluded assignees per ex- 

 pres\um far more ought he to have this power where 



the exclusion of assignees is only implied. 



42. If neither the setter nor tacksman shall proper- Tacit rel*. 

 ly discover their intention to have the tack dissolved cation. 



at the term fixed for its expiration, they are understood 

 or presumed to have entered into a new tack upon the 

 same terms with the former, which is called tacit relo- 

 cation, and continues till the landlord warn the tenant 

 to remove, or the tenant renounce his tack to the land- 

 lord. This obtains also in the case of moveable tenants, 

 who possess from year to year without written tacks. 



43. In tacks of land, the setter is commonly bound Obligation 

 to put all the houses and office-houses necessary for the u l )on ">e 

 farm, in good condition at the tenant's entry ; and the se 



tenant must keep them and leave them so at his remov- , a 



, , land ; 



al. But in tacks of houses, the setter must not only v 



deliver to the tenant the subject set, in tenantable re- j 

 pair at his entry, but uphold it in that repair during 

 the whole years of the tack ; and if it should become 

 insufficient before the ish, though without the setter's 

 fault, the tack-duty must either be entirely remitted, 

 or suffer an abatement in proportion to the damage sus- 

 tained by the tenant. 



44. A tenant, if his landlord should refuse to accept Obligatio 

 the victual-rent when offered in due time, is liable only on the 

 for the prices as fixed for the sheriff-fiars of that year; tacksman. 

 but if he has not duly offered his rent in kind, he must 



pay the value at the ordinary prices of the country ; 

 and over and above make good to the heritor the da- 

 mages incurred by him through the not delivery, if, 

 e. g. he should be thereby disabled from performing a 

 contract with a merchant to whom he had sold his 

 farms. If the inclemency of the weather, inundation, Whrt in 

 or calamity of war, should have brought upon the crop 

 an extraordinary damage (plus quam loleraliile) the 

 landlord had, by the Roman law, no claim for any part 

 of the tack-duty ; if the damage was more moderate, 

 he might exact the full rent. It is nowhere defined 

 what degree of sterility or devastation makes a loss 

 not to be borne, but the genend rule of the Roman 

 law seems to be made ours, by Dirt. 108. Tenants are 

 obliged to pay no cesses or public burdens to which 

 they are not expressly bound by their tacks ; but the 

 law itself divides the burdens of the schoolmaster's sa- 

 lary equally between the proprietor and his tenants, 

 I6y6, c. 26. 



45. Tacks may be evacuated during their currency, Dissolution 

 1. In the same manner as feu-rights, by the tacksman's of tacks 

 running in arrear of his tack-duty for two years together; during 

 but it may be prevented by the tenant's making pay- 



ment at the bar before sentence. 2. Where the tenant 

 either runs in arrear of one year's rent, or leaves his 

 farm uncultivated at the usual season, the judge-ordi- 

 nary, when applied to by the proprietor, is required by 

 the Act S 1 4th Dec. 1746, to ordain the tenant to give 

 security for the arrears, and for the rent of the five fol- 

 lowing crops, if the tack shall subsist so long ; other- 

 wise to decern him to remove, as if the tack was at an 

 end. 3. Tacks may be evacuated at any time by the 

 mutual consent of parties, e. g. by the tacksman's re- 

 nunciation accepted by the proprietor ; but verbaj re- 

 nunciations may be resiled from. 



j , 



