Click here to view a pdf copy of this documet : PDF Copy
James Gibb having set a tack of his coal to William Brown, the said William Brown assigned the said tack to William Couston. There is a sub-tack granted by William Brown, with consent of Coustoun his assignee to Cruickstoun, for a duty payable to the assignee. Gib the heritor having granted right to John Paton for some years of the tack-duty, who finding both Brown the tacksman, and Cruickstoun the sub-tacksman insolvent, pursues Coustoun assignee to the tack, for payment of the tack-duty, as he who was tenant in place of the principal tacksman, and who possessed by the sub-tacksman, having consented to his sub-tack, bearing, “the duty payable to the assignee,” whereupon there is a decreet of the Sheriff of the Shire, finding him liable upon that ground; which being now under reduction, it was alleged for Coustoun, assignee to the tack, that the accepting an assignation to a tack, could not oblige the assignee for the tack-duty, unless it contained an obligement to pay the same, or relieve the tacksman; albeit if the assignee had possessed or intromitted, he be liable for the rent de jure communi, as meddling with the fruits, yet not as assignee, for he might forbear to possess by the assignation, or might quit the possession when he pleased, as any other tenant without a tack; and albeit he consented to a sub-tack, bearing the duty payable to himself, yet he had gotten no payment, nor had any intromission.
The Lords sustained the decreet, and found that the assignee did possess by the sub-tacksman, who was in natural possession, and was obliged to pay the duty to the assignee.
