Scottish Court of Session Decisions

Subject_1 PERSONAL and TRANSMISSIBLE.
Subject_2 SECT. III.

What Rights go to Assignees.

Lady Binnie
v.
Hugh Sinclair

Date: 3 January 1672
Case No. No 64.

Found, that a tack, with power to subset, could not be assigned, assignees not being mentioned in it.

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The Lady Binnie having set a tack of her liferent lands to Hugh Sinclair, pursues to find caution for the mails and duties, or else to remove; it was alleged; That the libel was not relevant, unless it had been libelled, that, at least two terms of the tack-duty had been unpaid the time of the citation; but there is neither law nor custom obliging every tacksman to find caution, in case of his poverty, or to forefault his tack. It was answered, That the only ground inducing that custom, that, upon failure of payment of the tack-duty, the tacksman should find caution, or remove, is for security of the masters of the ground, that they suffer not tenants to possess, of whom they can get no payment, and not upon any paction of parties; so that, wherever that ground holds, the custom should be extended, especially in this case, where the tacksman is known to be bankrupt, and in prison for his debt. It was answered, That the custom having now passed into a law, that, upon several terms failzie, the tacksman should find caution, or remove, it neither doth appear, nor are we to enquire what were the motives introductive of it; it is sufficient that it was never libelled, or sustained, that, because the tenant was poor, that he should find caution, or remove, though he pay exactly at his terms; and this would forefault most tacks, for few would get caution for a yearly tack-duty, if considerable, and for many years, as in this case it is; and, therefore, custom hath justly astricted it to a year's failzie; because, masters of the ground have a hypothec, and privilege upon the fruits and tenants goods, for a year's rent, which no arrestment of creditors can prevent; and so they are secure for a year if the land be plenished, which even extends to the goods of sub-tenants; and, therefore, custom hath justly stated this certification to a year's failzie, that so, if more years come upon the crop and goods, the tenant shall find caution to remove.

The Lords found, that the libel was not relevant, unless there were a year's duty remaining, either at the time of the citation, or now; they found also, that the tack not bearing to assignees, albeit it bore sub-tenants, that there was no place for assignees.—See Tack.

Fol. Dic. v. 2. p. 75. Stair, v. 2. p. 34. *** Gosford reports this case:

Lady Binnie having set a tack of her liferent lands, during her lifetime, to Hugh Sinclair, for payment of 2000 merks, at two terms in the year, did pursue the said Hugh to find caution for payment of the yearly duty, or to remove from the lands. It was alleged, That there not being a year's duty resting owing of all bygones, nor the clause irritant committed, bearing, that if two terms run, the third unpaid, the tack should be void, no such action could be sustained by our law. It was replied, That the defender being denounced at the horn, his escheat gifted, and he incarcerated, and lying in prison for debt, for which all right he had was comprised, there was more reason that he should be decerned to find caution, or remove them; when a tenant, simply upon that ground, that he hath not made payment, may be pursued and decerned, as said is.—The Lords did sustain the defence, unless that the time of the interlocutor there was a full year's duty resting; in which case, they decerned, conform to the libel, albeit the time of the citation there was but a term due; but found, that, until a full year's duty was due, no such action could be sustained against a tacksman.—Thereafter it was alleged for Alexander Kennoway, That he was assignee to the tack, and responsal; and no such action could be sustained against him, but a declarator of circumvention might be pursued. It was replied, That, by the said tack, the said Hugh had no power to assign, it being granted to him and his sub-tenants, of no higher degree than himself.— The Lords did repel the allegeance; and found, that the tack being conceived, as said is, could not be assigned.

Gosford, MS. No 431. p. 222.