Subject_1 ANNUALRENT, INFEFTMENT OF. Subject_2 Whether an Annualrent-Right be a foundation for Mails and Duties?
Guthrie v. E Galloway.
Date: 15 March 1637 Case No. No 4.
A personal action was competent against all intromitters whatever, with the mails and duties.
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Richard Guthrie being made assignee, by Doctor Lindsay and Christian Heriot his spouse, to the bygones of an annualrent of 300 merks yearly, wherein they were infeft by John Achanay of Sorbie, and for which they had obtained sentence, to poind the ground of the lands of Sorbie, which were affected with the said annualrent, pursues the Earl of Galloway and his sons, as heritors of the saids lands, and as they who uplift the mails and duties of the saids lands from the tenants, occupiers thereof, to make payment to him of the said annualrent, for certain years bygone owing to them; during the which years the saids defenders were in possession of the duties, as said is; wherein the defenders alleging, That this action ought not to be sustained for a personal pursuit against the defenders, who are not authors of the pursuer's right of the annualrent libelled, nor heirs, nor apparent heirs to him; but the most the pursuer can obtain by the custom and practice of the country, is only action and execution against the ground, and against the tenants possessors thereof, for poinding of the ground, and of the tenants goods being thereupon; and it is a novelty to grant personal execution against a stranger, or any who is a singular successor:——The Lords repelled the allegeance, and sustained this personal pursuit, for payment personally against the defenders, the pursuer proving, that they intromitted with the duties of the lands, and that the quantity of their intromission extended to as much as should satisfy yearly the annualrent acclaimed; for the Lords held the defenders in no better case, than if naked tenants had been personally convened to pay this annualrent, quo casu they would have sustained the process; and with the like reason it was found, process ought to be sustained against the defenders: And the Lords declared, that they would keep this decision thereafter in all the like cases, whensoever any should occur.
Act. Heriot.Alt. Stuart & NicolsonClerk, Gibson.
Fol. Dic. v. 1. p. 45. Durie, p. 836.
