Import of a tack to the tacksman and his assignees, and of a tack to the tacksman and his sub-tenants.
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Upon advising a bill against an Ordinary’s interlocutor, finding an assignation to a tack null, in respect the tack was only to the tacksman and his sub-tenants, the Lords were divided upon the question, What the difference was between a tack given to the tacksman and his sub-tenants, and a tack to him and his assignees?
Some were of opinion, that in either case he might assign, and that the difference lay only in this, that where a tack is to assignees, the tacksman is after assignation no more liable for the rent than a feuer is for the feu-duty after a sale of the lands; whereas, where the tack is to the tacksman and his sub-tenants, the principal tacksman, notwithstanding of an assignation, remains still bound to the setter.
But the more general opinion was, that where a tack is to the tacksman and his assignees, the tacksman remains bound, even after assignation, just as in any other contract, e.g. a contract of victual. The assignation to that contract does not liberate the cedent; and that the difference lay in this, that a power to sub-set did only imply a power to give off a part, but not the whole; and that therefore, where a tack is granted only to the tacksman and his sub-tenants, an assignation would be null.
But the Lords came to no resolution; for the petition being appointed to be seen, the matter was taken up by the parties.
