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Scottish Court of Session Decisions >>
James Oswald v Andrew Robb [1688] Mor 15194 (20 July 1688)
URL: http://www.bailii.org/scot/cases/ScotCS/1688/Mor3515194-057.html Cite as:
[1688] Mor 15194
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A tack set to one during his life, and to his heir during his life, containing an obligement upon the setter and his successors to grant tacks in all time coming, for the same duty to the tacksman’s heirs as kindly tenants, being quarrelled in a reduction as null for want of an ish;
Answered: An obligement to set a tack is, in Craig’s opinion, equivalent to a tack; 2d, The ish is certain, at least is made at a definite uncertain time, viz. the failure of heirs of the tacksman; 3d, The defender hath acquired a title of prescription by forty years possession, as heir to the first heir in the tack, which hath been found sufficient to validate null tacks, set without issue, and consent of the Patron or Chapter.
Replied: Tacks subscribed without an ish are null; and though tacks null for want of solemnities, as the Patron’s or Chapter’s consent, &c. may be fortified by prescription, yet tacks null for (defect of) essentials, as the tack-duty or issue, cannot be made effectual by prescription.
The Lords reduced the tack as null for want of an ish.
