Scottish Court of Session Decisions

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

M'Vicar
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Date: 27 July 1764

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[Fac. Coll. III. No. 144.]

A question here was concerning steelbow, whether it would be affected by the diligence of the creditors of the tenant, in prejudice of the master?—And the Lords were much divided in opinion. My Lord Coalston thought that the property of the universitas was in the master, but the tenant had the free administration, and could bring to market and sell particular things ; and he compared it to a right which is very well known by the country people, viz. a right of liferent which a tenant leaves to his widow of his tack and stocking : in such case the widow may sell particular things, but must keep up the stocking. Lord Kaimes said it was impossible, without doing the greatest violence to the words of the contract, as well as to the general sense and opinion of the country, to find that this steelbow was the property of the tenant; for, by the tack, it was set to him in assedation as much as the lands, and, in the country, nothing was better understood than that it was the property of the master. On the other hand, several of the Judges thought that the property belonged to the tenant, because it consisted, in part, of fungibles, such as straw, which are consumed by using, and which are the worse for being kept any considerable time; and therefore if the tack was to endure for any space it was of necessity that the tenant should have the use and disposal of these things, for otherwise there would be a moveable subject entirely locked up from commerce, as it was admitted that the master could not dispose of it. The President was of this opinion; but he thought that the last year of the tack, when the steelbow was to be restored, it was to be considered as rent, for which the master had an hypothec over all the goods upon the farm ; and the fact here was, that the tenant renounced his tack, and soon after died, upon which the master took possession of the farm, and all the stocking upon it, and the creditors of the tenant confirmed themselves executors, so that the goods were in medio and in possession of the master ; and therefore all the Lords agreed in preferring him.