Scottish Court of Session Decisions

Subject_1 DILIGENCE.
Subject_2 SECT. III.

Diligence Prestable by Annualrents.

Thomas Moncrieff or that Ilk,
v.
The Other Creditors or Thomas Campbell Flesher in Edinburgh

Date: 21 February 1712
Case No. No 22.

A creditor by an heritable bond and infeftment, having obtained a decree of mails and duties against the tenants, preferring him to other competing creditors, was found accountable for the rents due by these tenants against whom he obtained the decree; but for his actual intromissions only, after their removal.

Click here to view a pdf copy of this documet : PDF Copy

Thomas Campbell in anno 1698, granted to Sir Thomas Moncrieff an heritable bond and infeftment in his lands of Towcross, in security of L. 6400 Scots, containing assignation to the mails and duties, but no power to set the lands, remove, out-put or in-put tenants; and Sir Thomas having, in a competition for mails and duties in the 1704, obtained a decreet before the Sheriffs of Edinburgh against the tenants, preferring him to Sir James Dick, and other creditors then competing, entered to the possession; but the common debtor, within a short space thereafter, removed the tenants who were decerned to pay Sir Thomas, and set the lands to others, from whom he uplifted the greatest part of the rents. Thomas Moncrieff, now of that Ilk, as deriving right from Sir Thomas, was, in a ranking of Thomas Campbell's creditors, found liable to count for the mails and duties of the lands due by those tenants against whom he obtained the decreet of preference; but found accountable only for his actual intromissions after removal of these tenant; because he had no power to set the lands, nor ready execution against the new intrants.

Fol. Dic. v. 1. p. 239. Forbes, p. 592.