Factor on the Sequestrated Estate of Auchinbreck v. Maclaughlan
Date: 11 February 1748 Case No. No. 123.
Effect of a tack let to endure till a sum lent by the tenant to the proprietor be repaid.
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In February 1729, Kenneth M'Lauchlan obtained, from Sir James Campbell of Auchinbreck, a tack of the lands of Dupin for five years from and after the Whitsunday following, at the yearly rent of 200 merks in money, 2 stones butter, 4 wedders, and 1 dozen of poultry, &c. and containing in the end the following clause, “And in regard Sir James has at this date borrowed 4000 merks from the said Kenneth, it is agreed, that notwithstanding the tack-duty is payable to Sir James and his foresaids, the said Kenneth is yearly to retain the interest of the said 4000 merks, a discharge whereof is to be received as payment of so much of the tack-duty; and it is further declared, That the tack, though but for five years, is to continue ay and while the foresaid sum of 4000 merks is paid.”
The estate of Auchinbreck was sequestrated in 1739, and the tenant continued to retain his annual-rent, as he had done before the sequestration till, in November 1742, the factor took a baron-decree for the rent of that year, and preceding years since the sequestration, and in time coming, the terms of payment being come and bygone; which the tenant suspended.
After this, the matter lay over till now, when the suspension coming to be discussed, the Lords ” Found the letters orderly proceeded for the rents fallen due since obtaining the decreet, but suspended the letters as to preceding years.”
As the tack was set for the definite space of five years, and the tenant to retain his annual-rent out of the tack-duty, they considered the after clause, that it was to continue till the sum was paid, to be personal, and that the decree was a sufficient interpellation of the tenant's bona fides; though in many cases such clauses have been found effectual, where the tack was set to the creditor till he should be paid of his money, and where there was an excresce of tack-duty over the annual-rent. But the judgment here given will, it is thought, be followed in time coming.
Fol. Dic. v. 4. p. 323. Kilkerran, No. 6. P. 534.*** D. Falconer's report of this case is No. 16. p. 1736. voce Bona Fide Consumption.
