If feu-duties and tack-duties are sued for, due by the rights of the defenders, they cannot propone prescription; but they will be liable to pay only those due within 40 years.
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In an action betwixt two men in Glasgow, the pursuer's predecessors having acquired infeftment from the defender's predecessors, of a tenement of land in wadset, and having set a back-tack to the heritor, who gave him the said infeftment redeemable, pursues the heir of the granter of the wadset, for payment of the back-tack duty, resting owing for the space of 40 years preceding the summons; which action the Lords sustained for the said tack-duty, for the said years by-past, not elder than 40 years, but within that space; but found that no action could be granted for any year before the 40 years preceding the said summons, seeing the action was prescribed for these elder years, the same not being pursued debito tempore within 40 years after the date of the tack; and found, that the prescription did not militate for the 40 years immediately preceding the summons, seeing the back-tack whereupon the pursuit was founded, contained annuam prestationem canonis, and was not for payment of a principal sum, but had tractum temporis successivum; and also the back-tack was set by him, who had an heritable infeftment of the land, who by virtue thereof, might have pursued for the whole mails of the land, if the back-tack had not been set.
Clerk, Scot.
Fol. Dic. v. 2. p. 100. Durie, p. 288.*** Spottiswood reports this case:
George Stewart wadsetter of a tenement in Glasgow, set back-tack again to Fleming heritor, who had given the wadset for payment of L. 10 yearly. He pursued Fleming's heir for the tack-duty ab anno 1571. Prescription of 40 being objected, it was found that a yearly duty founded upon an infeftment, was not of the nature of a bond, but that it might be sought for all the years within 40, but not above.
