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Umquhile Wolmet having set a tack of his coal to his children for their provision, and named Andrew Ker of Moriston and Torsonce overseers, the said Andrew intromitted with the coal for some years. The children pursued him before the late Judges for payment of the profit of the coal; in which pursuit he did allege, that he could not count or pay to the children the whole profit of the coal, but so much thereof as was free over and above the back-tack duty, due both out of land and coal, by virtue of the wadset granted to James Loch, who stood thereupon publicly infeft, and to which wadset Mr. Mark Ker, his own son, had right, to whom he paid the back-tack duty, and obtained his discharge. This being found relevant by the Judges, he produced holograph discharges granted by his son: The Judges found, that these holograph discharges did not prove payment made debito tempore, and therefore decerned without allowance of the back-tack duty. Andrew Ker pursues a reduction of this decree, as unjust, in so far as the back-tack duty was not allowed, as not paid debito tempore, whereas the back-tack being a real burden upon the whole profits jure hypotheca, all intromitters with the profits were liable to the wadsetter, and so Andrew Ker, as intromitter, was liable to the wadsetter, and was not obliged to employ that part of the profit for annual-rent to the children, although he were obliged to employ their own means, and so might lawfully have paid the wadsetter, or keeped it in his own hand for his own relief, and the wadsetter's discharge at any time was sufficient to free the children. It was answered, That there was no iniquity committed, because Andrew Ker could only be liable for the back-tack duty as tutor and overseer to the children; and even in that case he ought not to have paid without a distress, otherwise he prejudged the children of their relief against the heir, who is obliged to relieve them of the back-tack duty; and when ever he were distressed, he would not be obliged to pay any annual-rent to the wadsetter for the back-tack duties, which was the wadsetter's own aunual-rent; so that till the time of the distress, the whole annual-rent should have been put out to the use of the children upon annual-rent; so that the back-tack duties can only be allowed from this time, but not yearly as they were due, otherwise the bairns lose the benefit of the annual-rent the mean time; but there being no distress, Andrew Ker could never be liable to the wadsetter. It was answered for the pursuer, That the wadsetter being his own son, there was no reason to put him to any action, especially seeing the defenders cannot allege, that in any such action they had a competent defence, or that the heir has any defence whereupon to exclude their relief; neither is there any reason that the children should have annual-rent for the back-tack duty till it was paid, because it was not theirs, nor might he safely put it out of his hands, albeit the wadsetter had been a stranger; and albeit he be now functus officio as overseer, the title that made him liable to the wadsetter was as intromitter, which is a perpetual obligation, the wadsetter, as all masters of the ground, having jus hypothecæ upon the profit for payment of tack-duty, for which all intromitters are liable.
The Lords reduced that part part of the Judge's decree, and found, that Moriston, as intromitter, was liable to the wadsetter, and might retain so much of the profits in his hands as would pay the back-tack duty, and was not obliged to give out for the children upon annual-rent; but if de facto he had given it out in his own name for annual-rent, found, that the children should have the benefit thereof.
