Scottish Court of Session Decisions

Subject_1 PRESUMPTION.
Subject_2 DIVISION XIII.

Acts and Deeds are presumed to have been done according to what is common and customary.

Young
v.
Cockburn

Date: 3 July 1674
Case No. No 298.

In a pursuit for rent by a verbal tack, the real worth of the lands was presumed the rent agreed on, unless the tenant would prove an agreement for a lesser duty.

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George Young, as assignee by the Earl of Winton, pursues John Cockburn for 250 merks, as the rent of certain lands of the Earl of Winton's, possessed by him, libelling that the same was set by the Earl's chamberlain at that rate: And the pursuer, in the debate, declared, that he insisted against the defender for that duty, as that for which the land was worth and in use to pay, immediately before and after the defender's possession, and would not burden himself with probation of any agreement, which would put the quantity of the rent upon the tenant's oath, which were a great detriment to all heritors throughout the kingdom, who, for most part, have no tacks in writing; and, therefore, it hath always been sustained to prove prout de jure what they possessed, and that the lands were worth so much, unless they did except upon an agreement for a lesser duty, and proved the same. The defender answered, That a particular agreement libelled ought to be proved, and that he being no violent nor unwarrantable possessor, could only be liable ex pacto for what he agreed.

The Lords sustained the libel as it was mended, and declared, as aforesaid, relevant; and found, that the heritor needed only prove the tenant's possession and worth of the land, unless the tenant prove an agreement for a lesser duty.

Fol. Dic. v. 2. p. 161. Stair, v. 2. p. 247. *** Gosford reports this case:

George Young, as assignee by the Earl of Winton, having pursued the said John Cockburn for the sum of 500 merks, for two years mail and duty for the Castle of Niddrieyard, and park thereof, which was set to him by Sir Walter Seaton, as commissioner for the Earl of Winton, upon this ground, that the possessors thereof, two years before, and as long since the defender's removal, paid so much for the same; it was alleged, That any tack set by Sir William was verbal; and the defender was content that the pursuer prove the mail and duty libelled prout de jure. It was replied, That it was sufficient to offer to prove, that the Castleyard and park paid so much before and since the tack, which infers a prescription in law, that it could not be set for less by a verbal tack, that being a common case of all heritors, unless the possessors prove that it was set for a less duty.—The Lords did find, that the tack being verbal, and the defender not denying but that the house, yards, and parks, did pay so much, both before and after, the presumption in law transferred onus probandi upon the defender, to prove that it was set for a less duty; but found it sufficient to prove the same by Sir Walter's oath, who had power and commission to set the same; and if he confessed that he set them for a less duty, the defender would, he free.

Gosford, MS. No 703. p. 421.