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Scottish Court of Session Decisions >>
The Bishop of Argyle v John Walkerhis Commissary. [1672] Mor 15318 (19 November 1672)
URL: http://www.bailii.org/scot/cases/ScotCS/1672/Mor3515318-209.html Cite as:
[1672] Mor 15318
A renunciation of a tack will not take off the effect of tacit relocation, if the tacksman thereafter continue to possess or intromit.
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The Commissary having had a tack of the quots of testaments and whole casualties belonging to the late Bishop of Argyle, and after expiring of the tack, having continued to intromit during the time this present Bishop's decreet was gotten against him, as being liable per tacitam relocationem, after which decreet the Bishop of new did pursue him upon the same ground for the tack-duty since the last decreet ;—it was alleged for the defender, That in the former process he having judicially renounced the said tack, he could only be liable for his intromission et tanquam negotiorum gestor, but not as tacksman, seeing if he had intromitted with much more than the tack-duty, undoubtedly he would have been found liable therefore; and therefore a contrario of his intromission should be found less, he ought not to be further liable. It was replied, That the said renunciation being but protestatio contraria facto, the Commissary by his subsequent intromission did return to be in the case of tacita relocatio, as is clear in the case of a tenant of lands, who should continue to labour after renouncing of his tack. The Lords did sustain the pursuit, notwithstanding of the defence, and found that the Commissary, by his former intromission, being stated in the case of tacita relocatio, any renunciation made in that process was past from by his subsequent continuing to intromit, whereby the Bishop had it in his power to adhere thereto or not ; in respect that he was in mala fide to contravene his own renunciation ; and the argument a contrario could not militate against the Bishop; as likewise found, that there was no difference in this case betwixt a tacksman of lands and of casualties, which are uncertain. Yet many of the Lords were of a contrary opinion; but it was carried by a plurality of votes, and it seems upon no just reasons.
