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.
William Selkrig, Writer in Edinburgh, v. John French, Maltman in Glasgow
Date: 30 June 1708 Case No. No 33.
A person who, intimating his right to a tenant's moveables and household plenishing, by an instrument of possession, debarred the proprietor from poinding them for his year's rent jure hypothecę, and did baoklet the goods to the tenant, found liable to the proprietor for the rent, although the poinding was to have been executed in a house not belonging to him, to which the goods had been removed before granting the disposition.
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In the action at the instance of William Selkrig, against John French, for payment of L. 80 Scots, as a year's rent of a house in Glasgow pertaining to the charger, and set to William Drew, innkeeper there, to whose moveables and househould plenishing John French had right by disposition intimated by instrument of possession, and debarred William Selkrig from poinding the same, for his year's rent, by virtue of his hypothec;
Alleged for the defender; He could not be liable for the year's rent; because, albeit he, as creditor to Drew, took a disposition to the household plenishing, and got an instrument of possession, yet he never intromitted with the same; but did only, by virtue of his disposition, oppose the pursuer's poinding thereof, after they were removed out of his, the pursuer's house, into another, where they were lodged before the defender acquired right thereto, who was not bound to know that any privilege of hypothec was competent to the pursuer; and though a legal hypothec may furnish a title to detain, or even recover goods while extant, no person who hath either bona fide acquired and disposed of them, or who never intromitted, although he had a title to intromit, can be overtaken on that head. 2do, The defender cannot be liable for the rent upon the account of his producing to the messenger the disposition and instrument of possession; seeing, if the same could not debar the pursuer from poinding, he might have proceeded and if the disposition was good and valid, there is no reason to make the defender liable.
Answered for the pursuer; There being a manifest collusive design in French to cover Drew's possession by the disposition, as appears from the instrument of possession containing a back-tack of the goods set to Drew; the intimation of French's right to the messenger the very same day that Selkrig charged Drew; and the stopping his poinding upon pretext of the disposition; French's attaining possession by getting the key of the house wherein the goods were, back-setting them to Drew, and allowing him to possess, was upon the risk of French, who, having got into possession of the goods, disposed thereof by setting them in back-tack to the common debtor, and debarred Mr Selkrig, is to be held as intromitter therewith, and consequently liable for the rent for which they were hypothecated; since it is by his own fault and fact of setting a back-tack to the debtor, that he did not intromit. It is of no moment to pretend that the poinding was to have been executed in another house than Selkrig's; for wherever a tenant's goods are carried, they are still affected with the right of the hypothec. 2do, It is trivial to allege, that the defender could not hinder Selkrig to go on in his poinding; because the messenger was actually scared and hindered from proceeding after production of the disposition, least he should incur the guilt of a riot; and it was not the messenger's business to quarrel the disposition, there being a legal remedy.
The Lords repelled the defences, in respect of the answers.
