Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by Alexander Tait, Clerk Of Session, One Of The Reporters For The Faculty.

Crawford, Tenant in Orchyard
v.
Whiteford of Dunduff

1778. August.

Click here to view a pdf copy of this documet : PDF Copy

This day, 13th June 1778, in arguing a cause, Whiteford of Dunduff against Crawford, the Lord Braxfield gave it as his opinion, That, in a liferent tack, on the death of the liferenter-tenant, no warning was necessary against his successor. The successor was liable to remove immediately, without warning; and both he and the other Lords were of opinion, that, where a tack is set to a tenant and his heirs for a certain space, even excluding assignees, or excluding them without consent of the master, still the tenant may assign it to his son, or heir-at-law, even without allowance of the master;* because the tack at any rate would go to his heirs, and be possessed by him or them for a space certain. See the decision Hepburn against Burn, 23d February 1760. But there is reason to think, that, if a tack was granted to a tenant for a certain space,—and for his life, or the life of his heir in possession, at the issue of that space, exclusive of a power to assign, except with consent of the master,—that, in such case,† the tenant, perhaps an old man, could assign the tack to his heir, perhaps an infant, without consent of the master; for this would be to give the tenant power to slip his own neck out, perhaps an old man, and to slip in his son, perhaps a young man, and thereby greatly lengthen out the duration of

* Consider the law as to ward-holdings; where the dispensation was granted to the heir-at-law, no recognition followed.

* This was the case here.

the tack. This was the opinion of Lord Justice-Clerk, Lord Kennet, and Lord Covington. Braxfield and Westhall thought differently.

In this case of Crawford and Whiteford, a good deal depended upon what was to be considered as a homologation by the master, of an assignation granted by the tenant to his son; and this was said to be the case of the decision Sir G. Suttie against Burn, the counterpart of the case Hepburn against Burn.

The decisions cited were, Marquis of Tweeddale against Saunderson; Hepburn against Burn; Sir George Suttie against Burn.

Upon the whole the Lords sustained the defences for the tenant, and assoilyied from the removing, 16th June 1778. They did not give any ratio decidendi, but seemed to go upon different grounds; some upon the ground that an assignation by a father to a son was competent, though assignees were excluded, and some on certain homologations of the assignation by the master. On a reclaiming petition they adhered without answers, but refused expenses.