Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. collected by JAMES BURNETT, LORD MONBODDO.

Garden
v.
Lindsay

Date: 28 January 1757

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In this case the Lords sustained a payment made by a tenant to his master, after he was cited by an adjudger in a process of maills and duties, and a decreet taken against him in absence,—upon this principle, that a decreet of maills and duties does not put an adjudger in possession, nor make him liable to account for the rents: nothing but actual uplifting of the rents can do that: and therefore if, after taking decreet, he stands off, and does not charge, which was the case here, where the payment was not made till about fourteen months after the citation and eight months after the decreet, the tenant may conclude that the adjudger does not mean to take possession, and therefore may pay safely to his master.

The Lords went unanimously into this opinion, which was moved by the President, though they acknowledged it was new to them. For the same reason, the President said that an assignation in security to any subject, though intimated by the assignee, would not make him liable to account, if he did not uplift.