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Scottish Court of Session Decisions >>
Johnston v Forbes. [1639] Mor 10037 (22 February 1639)
URL: http://www.bailii.org/scot/cases/ScotCS/1639/Mor2410037-009.html Cite as:
[1639] Mor 10037
Where a tenant had failed in performance only as to the last year of his tack, found not liable for the whole penalty.
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Robert Johnston sets in tack, for five years, the lands of to Robert Forbes, wherein the said Robert Forbes is obliged, by a special clause, to pasture his whole goods upon the said lands yearly, during the said space, and to hold his goods within the byres and stables, and to hold the thatch within the town, and to ware the whole gooding within the town, during the years of the tack; and, in case of failzie, to pay L. 100; upon the which tack the setter obtained decreet before the Sheriff of Aberdeen, for payment of the said L. 100, because the tacksman, the last year of the tack, gooded not the ground; and, therefore, he was decerned to pay the sum: Which decreet being suspended, the Lords found, that the decreet before the Sheriff being given upon probation of the not-gooding the ground the last year of the tack, could not import condemnator for payment of the whole penalty, albeit the clause of the tack bore, to pay the same, in case of failzie, indefinitely, and did not astrict the payment of the whole to the failzie of all the years; and, therefore, found, that for the failzie of one year, no more could be decerned by the Sheriff but the fifth part of the penalty, which answered in proportion to the five years of the tack; and suspended the letters simpliciter for the rest of the L. 100, notwithstanding of the sentence given against the party compearing, and a sentence of the Lords upon an anterior suspension, where the letters were found orderly proceeded for the whole.
