Process against Sub-Tacksmen and Intromitters, with Subjects hypothecated. - What if caution or payment has been offered by the Intromitters, or if sufficiency has been left to answer the rent.
Swinton v. Seton and Others
Date: 19 July 1627 Case No. No 24.
Action sustained at the instance of a landlord against the purchaser of his tenant's corn, though the purchaser alleged, that as much remained on the ground at the time of the purchase as would pay the rent.
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Robert Swinton, as heritor of certain acres of land beside Haddington, by the King's letters, arrests in the hands and barn of James Harlaw, certain corns which grew upon the said acres in anno 1622, pertaining to Patrick Harlaw tenant to Robert, for his duty of that year. He raises summons thereon against James and against Walter Seton, who had intromitted with the corns, to make the same furthcoming for that year's duty. Alleged, That Walter poinded them upon a registered bond of Patrick's, long before the arrestment. Replied, The corns were affected with a tacit hypothecation to the master of the ground, so that whoever intromitted therewith, albeit creditor, the master has privilege of repetition, and craving the same to be made furthcoming, while his duty be paid, seeing he offers to prove the corns arrested grew that year on his ground.—Repell the exception, and admit the reply, that they grew on the ground. Duplied, The time of the arrestment the tenant had corns on the ground, which the pursuer might have retained for his duty. Triplied, The master had in his option, to choose any corns which grew on his ground, to arrest for his duty, and the defender might have poinded the rest.
Act. Cunningham & Cockburn.Alt. ———Clerk, Hay.
Fol. Dic. v. 1. p. 418. Nicolson. MS. No 412. p. 287.
