Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
The Earl of Southesk v. The Tenants of Sir David Carnegy of Pittarrow
Date: 4 February 1698
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The Earl of Southesk, pursuing maills and duties against the Tenants of Sir David Carnegy of Pittarrow, on an infeftment for relief of cautionary he had paid for him, and prevailing;—the question arose, A quo tempore the tenants were to be decerned; for the cause had depended four or five years in discussing a competition, and during that time they had continued to pay their rents to those who were in possession before.
Alleged for Southesk,—They were in mala fide after his citation, but should have suspended on double poinding, else a bankrupt master keeping his creditors, by calumnious allegeances, out of possession, may lucrarifructus during all that time; and the tenants' rusticity ought not to excuse them here. Answered,—When a cause depends long, it is a prejudice both to the master and his creditors that the rents lie in the tenants' hands un uplifted, for either they break or the rent squanders; but the true remedy for creditors, in that case, is either to get a factor, and the rents sequestrated, or to arrest them; and if they neglect this, and the poor tenants pay to their former master, it were most rigorous to cause them, at the event of a long depending plea, to pay over again; and the Tenants were assoilyied in the case of The Creditors of North Berwick.
The Lords thought it severe to decern the tenants for so many years, (though in strict law they might do it;) and therefore only found them liable from the date of the last charge given them.
