Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL
Subject_2 WINTER SESSION. - Anni 1973.

Sir Walter Seton of Abercorne
v.
the Earl of Winton

1676. February.

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Sir Walter Seton of Abercorne having been the Earl of Winton's tacksman for three years, as to his casual rent of coal and salt in East Lothian, for which he was to pay him 24,000 merks of tack-duty; and when they came to count and reckon, he gave up exorbitant debursements waired out upon the putting down of sinks, levels, and other works, which, though they were not contained in the tack, nor provided for, yet as utilis negotiorum gestor he craved repetition, or retention of so much, in so far as he had bettered my lord's condition by these works.

It was contended, That qui aliquid facere obligatur, (without specifying on whose charge and expence it shall be done,) id suis sumptibus facere debet; so Zoesius in prælectionibus feudalibus, pagina 113, and cites Julius Clarus for it. Quod quis spopondit id suo impendio dare debet, says, L. 20, D. de Operis Libertorum, et Lex 53, D. de Fidei-commissariis Libertatibus. A seller makes a right on his own charge, to the buyer, unless the contrary be specially provided by a paction. 2do, All ambiguous and dubious clauses in writs and contracts are always, in construction of law, interpreted contra eum who is thereby obliged, L. 39, D. de Pactis; L. 21 et 33, D. de Contrahenda Emptione; ibique Autumnus, in Censura Gallica: who is censured again by Scotanus, in Examine Juridica, pagina 3: of which the law gives this reason, quia potuit ille apertius contractui legem dicere, et sibi imputet that he did it not. But, 3tio, We are not straitened to recur here to these general principles of law, since the meaning and design of parties which governs all writs may be elicited from other particulars in this tack; as, by that clause, whereby if any new sinks or levels be made, Sir Walter is obliged to pay two bolls for every acre of ground he so breaks; if he was to pay for the ground and not my lord, much less was the expence of these levels to fall upon my lord. As to his partial payments or furnishings to my lord's house, he must say, they were chamberlains, cash-keepers, &c. in the words of the tack, obliging him to pay to my lord, his chamberlains, &c. the tack-duty, and shew their receipts, alias he was in mala fide to pay to any others. Next, my lord must have compensation, in so far as he has waired upon the pans beiting, since Sir Walter is, by a clause of the tack, bound to leave them in as good condition as they were in when he found them; which would have required a visitation by tradesmen, both at the entry and ish, ere one can institute a parallel of the deterioration. Yet this is a great vidimus that they were insufficient at his overgiving of the tack, because a good beit, in the opinion of persons of skill, will last for a year; and it is offered to be proven, my Lord Winton's commissioners were put to beit some of them within six months after they were cast in their hands; and that they were sufficient at his entry, must be presumed, for he would have seen to that. And if his extravagant defalcations were allowed then, it were an easy way for every tacksman to pay his duty by exhausting, absorbing, and compensing it with charges waired on the work. Sure my Lord Winton meant otherwise; and so did all other parties, since he has got the same tack-duty paid him by tacksmen who succeeded to Sir Walter, and yet they carried up all these levels on their own expences, whereof Sir Walter now craves allowance. And what sober, indifferent man will imagine that Sir Walter was to have all that done to his hand, or that my Lord Winton designed to compliment him with so great an ease? Nemo præsumitur suum temere jactare.

Advocates' MS. No. 472, folio 244.