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.

Lord Balmanno
v.
James and William Cochran

Date: 3 July 1630

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Sir Robert Hamilton of Tweedie gave bond to James and William Cochrans of 1000 merks, payable at a term, and, during the non-payment thereof, he and William Ferry, his tenant, were obliged in payment of the annual-rent thereof, yearly at Whitsunday. For payment whereof, Sir Robert allowed to the said William Ferry 1000 merks, which he was bound to pay him for his lands of Tweedie. After payment made some years by Ferry, the lands of Tweedie are comprised from Sir Robert, by my Lord Balmanno, who, by virtue of his right, pursues payment of the mails from Ferry, who is likewise charged by the Cochrans for the annual-rent. He suspended upon multiplepoinding. The question was not which of them should be preferred: But the Cochrans contended, that Ferry should make them payment of the annual-rent, being personally obliged to them for payment thereof. Answered, He is obliged, not as cautioner, but as tenant to the principal, and that for his tack-duty to be paid to his master, which he assigned for payment of the said annual-rent: And now, seeing the land is comprised from his master, and the compriser will have right to the tack-duty, he cannot be obliged to pay both. The Lords found that the tenant was only subject in single payment to any of the parties having best right, notwithstanding of his bond; albeit the contrary has been found once or twice before.

In this decision, the conception of the words was thought to make for the tenant, which was thus:— “And, for the more sure payment of the annual-rent yearly, I have ordained my tenant, William Ferry, to pay 100 merks yearly of his tack-duty to Cochrans; likeas the said William obligeth himself to pay to Cochrans the foresaid annual-rent termly.”

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