Subject_1 QUOD AB INITIO VITIOSUM. Subject_2 SECT. III.
Production of Titles cum Processu.
Sir James Cleland v. The Tenants of Arbuckle
Date: 23 February 1622 Case No. No 17.
Found, that a sub tacksman, pursuer of a spuilzie of teinds, may produce the principal tack sum processu.
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Sir James, as assignee by Margaret Ker, to sub-tack of the teinds of Arbuckle, set to her for lifetime by Hamilton of Rosehalloch, her son, principal tacksman, serves inhibition, and pursues spuilzie of the crop 1620. Alleged, No process on the sub-tack produced, while it be shown, where the setter of the sub-tack had right himself, and his principal tack produced, and was decided betwixt the Earl Lothian and Captain Crawford. Replied, Offers to prove cum processu, that the granter of the sub-tack had tack for years to run set to him, which the pursuer could not now show, the same not being his evident. Repel the allegeance, in respect of the reply, that the principal tacksman has tacks for years to run.
1622. March 14.—Alleged, The defenders have tack from the pursuer's cedent of the lands libelled, by the which the cedent has obliged her to warrant to the excipients both stock and teind; likewise the pursuer has, by his backbond the time of the making of the assignation, bound him to make payment of the equal half of such as he shall receive, and so implies a manifest collusion against the statute, and a lawful creditor. Replied; Repels; because the tack can only produce to them warrandice against the setter; and, for the backbond, it makes the assignation true, and the more onerous; and the most they can object thereon is for one half, and there is no collusion, and they show not themselves creditors. Find the exception relevant for the one half of the quantity, and admit the summons to probation for the whole.
Cunningham, HamiltonStewart, Lawtie.
Fol. Dic. v. 2. p. 302. Nicolson, MS. No 571. p. 395.*** Haddington reports this case:
1622. February 23—In a pursuit of spuilzie by Sir James Cleland, as subtacksman, the defender alleged, No process, while the principal tack was produced; which the Lords found relevant; albeit the pursuer offered to prove, that the defender had paid him duties. But thereafter the Lords sustained the pursuit, offering to produce the principal tack before the conclusion of the cause.
