Assignation to Mails and Duties, with other Rights.
Samuel v. Samuel
Date: 13 February 1627 Case No. No 49.
A tack being set by an heritor, and therein the tack-duty appointed yearly to be paid, not to himself, but to one of his creditors, by virtue whereof the said creditor was in possession, the Lords preferred this creditor to a posterior compriser not infeft.
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In an action betwixt Samuel and Samuel, for payment of a tack-duty contained in a tack set by John Forrester, heritor of the lands set in tack, and which appointed the duty thereof to be paid to the pursuer, being a creditor to the setter, and which duty was paid diverse years of the tack to the pursuer; the heritable right of the lands being thereafter within the years of the tack, comprised from the setter of the tack; which compriser compeared in this process, viz. the Lo. Corstorphin, and claimed the duties of the tack to pertain to him, by the right of his comprising of the lands.——The Lords found, That the compriser had right to the said tack-duty of the years since his comprising, and not this pursuer, notwithstanding that the tack expressly bore, and appointed, the duty to be paid to him; and albeit it had taken effect by possession, before his comprising; for albeit the compriser, during the space of the tack, the same being set, as said is, before the comprising, could not move the tacksman; yet he had right to the tack-duty, seeing the setter of the tack could not appoint the duty to be paid to any other person effectually, so as it could last longer than he himself remained heritor; and his right being comprised from him, the duty could not pertain to that person to whom he had appointed the payment thereof to be made, after his own right was taken from him. The cause being thereafter called, 27th February 1617, the contrary hereof was found, and the tack-duty found due to him to whom the tack was appointed to be paid; which was de novo done over again in favour of the tacksman and pursuer.
Act. Stuart.Alt. ——.Clerk, Hay.
Fol. Dic. v. 1. p. 181. Durie, p. 271.
