Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION reported by SIR ROBERT SPOTISWOODE OF PENTLAND.
Subject_2 Such of the following Decision as are of a Date prior to about the year 1620, must have been taken by Spotiswoode from some of the more early Reporters. The Cases which immediately follow have no Date affixed to them by Spotiswoode.

John Cant
v.
Gray

Date: 5 March 1630

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Mr John Cant, being heritably infeft in the lands of Laureston, pertaining to Sir Alexander Naper, sets a back-tack of the same to Sir Alexander, for payment of £700 yearly. Sir Alexander, in March 1629, causeth one of his tenants give bond to one Gray, at the West-port, for payment of 30 bolls of victual, betwixt Yule and Candlemas following. Sir Alexander being dead, Mr John, in September, arrests the same victual in the tenant's hands, for payment to him of his tack-duty. The question coming betwixt Mr John and Gray, which of them should be preferred; Mr John alleged, He, being heritor, might have recourse to the ground for payment of his duty, and ought to be preferred to the other, having arrested in due time, and the farms being yet extant in the tenant's hands. Gray answered, He ought to be preferred in respect of his bond, and Mr John could only have personal action against Sir Alexander's heirs and executors, for payment of his tack-duty; seeing he could not be respected as heritor, but only as naked tacksman. The Lords found that the heritor, notwithstanding of the back-tack, was in no worse case; but that the land was affected really with the burden of the tack-duty: and so preferred Mr John; and likewise freed the tenant of his bond to Gray, seeing it was only given for his farms.

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