Thomas Fairholm of Pilton v. George Livingstone, one of the Under-Clerks of Session
Date: 3 February 1725 Case No. No 250.
The act 1669 held not to apply to a tacksman of a whole estate.
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James Riddel of Kinglass, with consent of Sir James Cockburn, Sir Robert Miln, and Walter Riddel, three of his creditors, set a tack to Dr Livingstone, in the year 1682, of the lands of Kinglass, coals, coal-heughs, salt-pans, &c. to continue for seven years, for payment of a certain tack-duty to his creditors, by the proportions contained in the tack.
The Doctor died the year following; but his widow continued to possess, in virtue of the tack, till the expiry thereof, and for one year longer, by a tacit relocation.
Sir James Cockburn and Sir Robert Miln's debts being assigned to Mr Fairholm, he pursued George Livingstone, as representing his father the Doctor, to account for and pay these tack-duties.
The defences offered for Mr Livingstone were, 1mo, That the pursuer had no title to insist, because the debts assigned to him were paid out of the price of the estate of Kinglass; 2do, That the mails and duties pursued for were prescribed by the 9th act, Parliament 1699.
It was answered to the first, That nothing was more ordinary than in a ranking to oblige a creditor, whose debt affected two different subjects, to assign his debt, upon his being preferred on one of them, that so the postponed creditors might carry a right to the other subject.
To the second it was answered, 1mo, That the prescription only regarded, and was in favour of poor tenants, who had no tacks, at least, it did not relate to tacksmen of a whole estate; for, in the case of Murray against Trotter, 9th September 1709, No 248. p. 11054. the Lords found, “That the act of Parliament did not extend to the case of a tacksman of a whole liferent.” 2do, That there was interruption, in so far as Chisholm of Hairhope, during the currency of Dr Livingstone's tack, obtained a decreet of mails and duties against Mrs Livingstone; of which decreet a suspension was obtained upon a multiplepoinding anno 1687, in which Walter Riddel's interest was produced, but the competition never was discussed.
It was replied, as to the point of prescription, That the act of Parliament was general, and enacted, “That tenants not being pursued within five years after their removal, the mails and duties should prescribe;” and from this act there was no exception, unless the tenants acknowledge what they owe by a special writ under their hands; which plainly must be a particular writ, constituting the rents, distinct from the tack-duty, which only shows the tack-duty, but not what may be owing of it by the tenants. As to the decision quoted, it was answered, That there, though the right was conceived in form of a tack, yet the nature of the right was the turning a liferent into an obligation for an annuity. And as to the interruption, Mr. Livingstone answered, That any interruption at Hairhope's instance was during the currency of the tack, before the prescription begun to run; and Mr Livingstone being repond against his decreet, the matter landed in a competition not wakened within five years.
The Lords sustained the pursuer's title; but found that the act of Parliament 1669 did take place in this case.
Act. H. Dalrymple, sen.Alt. Ja. Boswell.Clerk, Hall.
Edgar, p. 162.
