In what Cases must the Tenant find Caution for the Rent?
Fisher v. Turnbull,
and
Ballantine v. Broad
Date: 10 July 1632 Case No. No. 182.
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The deceased John Turnbull of Symontoun, and Katharine Fisher his spouse, having set a tack of some lands to umquhile Rutherford, and Turnbull his spouse; both the husbands being dead, Katharine Fisher pursues the relict and apparent heir of the tacksman to pay a term's duty, which was owing, and to find caution to pay in time to come, or to remove, as use is. Which action the Lords sustained, albeit there was not yet a whole year owing, but only one term, preceding the summons, and albeit it was offered to be presently paid; in respect the relict, who was pursuer, was a mean woman, who had no more to live upon, and that the relict, who was defender, albeit she was tackswoman, seeing the tack was set to her with her husband, yet she had not subscribed the tack, so that she might thereby either labour the land, or leave it waste, as she pleased, and so thereby the pursuer might be disappointed of the tack-duty, and all benefit of the land.
Act. Stuart.Clerk, Gibson.
Fol. Dic. v. 2. p. 425. Durie, p. 642.*** Auchinleck reports this case:
Katharine Fisher, relict of umquhile William Turnbull, having set a tack, with her husband's consent, to Margaret Turnbull, and Thomas Rutherford her spouse, for the sum of 200 merks, to be paid at two terms in the year, pursues the said Margaret and her son to find caution for the tack-duty, or else to remove. It is excepted, That such action cannot be granted, except where there is a year's duty unpaid by tacksmen; but here the defenders are only owing a term's duty. To which it was replied, That the pursuer is a poor widow, and has no more to live on but this tack-duty; and the defender puts her termly to pursue for her duty; and also the said Margaret has never subscribed the tack, whereby she is obliged to pay the duty. The Lords, in respect of the pursuer's estate, ordained the defender to subscribe the tack, and to find caution, or else to remove; but this decision is not always observed; and not only may the person to whom the back-tack is set be pursued by this sort of action, but also he that comes in the place of the tacksman, either by comprising or alienation of their lands wadset; Mr. Nicol Ballantine contra The Laird of Broad.
