In a spuilzie of tiends, it was found, that the principal tack having been reduced, when the subtacksman was not called as a party, the sub-tack, notwithstanding, could not defend him, altho' there were years to run of both tacks.
Click here to view a pdf copy of this documet : PDF Copy
In an action of spuilzie, at the instance of the Earl of Wigton against the Parishioners of Stobo, the Lords found, that a sub-tack, set by a principal tacksman, there being years to run both of the principal tack and sub-tack, the years to run of the sub-tack could not defend the sub-tacksman being defender, in this process of spuilzie, where the principal tack was reduced before; albeit that the defender alleged, That he was not called to the reduction of the tack, as he contended that he ought to have been, being, at the time of the reduction, of before, and sincesine, in real possession of the teinds libelled, and not being called, the sub-tack behoved to liberate him from the spuilzie, he being bona fide possessor; notwithstanding whereof the allegeance was repelled, in respect of the reply, founded upon the reduction of the principal tack, to the reduction whereof the Lords found no necessity to call the sub-tacksman, and that he could not be in bona fide, in respect of the inhibition libelled, which interrupted his possession.
Act. Hope.Alt. Cunninghame.Clerk, Gibson.
Fol. Dic. v. 2. p. 351. Durie, p. 91.*** Haddington reports this case:
A principal tack, containing a clause irritant, being sought to be reduced super to capite, he who has a sub-tack is not necessary to be called, unless he allege that his interest was known to the pursuer of the reduction, by intimation, or some other legal mean. He who excepted upon an infeftment of lands, cum decimis inclusis, and many years possession by virtue thereof, cannot be elided by a reply, that the pursuer, and his predecessors and authors, have been many years in possession of the teinds controverted, by uplifting a great part of the teinds ipsa corpora, and receiving of payment of an yearly duty for the rest from the defender, unless he offer to prove the reply by writ or oath of party, because the Lords will not take away a valid right, clad with possession, by probation of witnesses.
In that same cause the Lords would not admit an irrelevant allegeance, albeit the contrary party made no answer to it.
