Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR GEORGE AUCHINLECK OF BALMANNO.

Mark Home and - Huntly
v.
The Laird of Rentone

Date: 13 December 1628

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The goodman of Huttonhall made Mark Home assignee to the tack-duty of Huntliewood, who, conform to his assignation, was alleged to have been in possession two or three years after the assignation. One Huntly, tailor in Edinburgh, in March 1628, arrested the said tack-duty of the term of Whitsunday subsequent, 1628, for a debt owing to him by Huttonhall in April 1628. The Laird of Rentone comprises the lands of Huntliewood. The tenants suspend for triple poinding. The Lords prefer the Laird of Rentone compriser to the other two, as he who had best right to the duty of the lands, by reason he was a singular successor, and had a more real right, which was preferred to the arrester, by reason the debtor to the arrester was denuded of all right he had to the duty of the lands by a legal title, and the arrestment could not affect the duty of the lands, except they had remained in the person of the debtor while the term of payment. And as to the assignation of the tack-duty, this was not habilis modus to bruik the duty longer nor the same belonged to the cedent, or otherwise. One might set long tacks, and make assignations to the duty thereof, and so defraud his creditors that should happen to apprise; or, if he sold his lands, should by a prior assignation being a private right, defraud the party buyer of the lands.

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