Process against Sub-Tacksmen and Intromitters, with Subjects hypothecated. - What if caution or payment has been offered by the Intromitters, or if sufficiency has been left to answer the rent.
Francis Ruthven of Redcastle v. Robert Arbuthnot Merchant
Date: 18 December 1673 Case No. No 29a.
Found that the goods of a tenant of any one year cannot be poinded, till the rent for that year be paid, or as much left as will satisfy it.
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Redcastle having pursued the said Robert, for his wrongous intromission with eighteen bolls of victual, belonging to one of his tenants, and carrying the same off the ground before the pursuer was paid for his year's rent, it was alleged for the defender, That his intromission was auctore prætore by virtue of letters of poinding directed against the tenant for not paying of his debt, which was greater than the avail of his goods poinded, and which corns being long since bona fide percepti et consumpti, he is not in law obliged to restore the price thereof. It was replied, That, by our law, all masters have jus tacitæ hypothecæ to all their tenant's corns or goods, for payment of that year's duty that the corns did grow, which being a real right, affects the same, and any singular successor, albeit they were poinded, or comprised, or sold in a public market, ought to make good the same.—— The Lords did repel the defence, in respect of the reply, and found, that all tenant's goods, or corns, were hypothecated to their masters for one year's duty; and that the same could not be poinded, nor disposed of, unless they would offer to prove, that they left as much upon the ground as will satisfy the master.
Fol. Dic. v. 1. p. 418. Gosford, MS. No 652. p. 380.
