Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 TACKS.

Scrimgeour
v.
Mitchell

Date: 23 November 1775

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Whether an express exclusion of assignees in a tack excludes also the power of subsetting has been often doubted. As to this, a distinction has been made betwixt a total subset and a partial one: the first has been held equal to an assignation, and consequently void; the last not.

This point occurred in the case of Scrimgeour and his trustees against Mitchell; and the Lords seemed to regard the distinction. At the same time, how a tacksman, who is at liberty to subset his farm to three or four sub-tenants, holding distinct parts, but so as to exhaust the whole, should not be at liberty to subset the whole to one tenant, seems difficult to conceive.

See 28th June, 1758, Ronald Crawford against Maxwell.

Even as to the general point, by the law of Scotland a lease is a personal grant unless there be circumstances in it which show the contrary. From this principle it follows, that a tack to a man and his heirs cannot be assigned. This holds as to voluntary assignees; but if, over and above this exclusion from principle, assignees are excluded per expressum, then judicial assignees are excluded also.

As to sub-tenants, in a tack to a man and his heirs, they are excluded, and whether total or partial makes no difference; but then, from all this, it seems to follow, that an exclusion of assignees does not comprehend an exclusion of subtenants: these are different, and require different clauses.

In the case here mentioned, Scrimgeour against Mitchell, the Lords, by their interlocutor, reduced the sub-tack, which was a total one; but, on a reclaiming petition, the cause went off upon this specialty, That Mitchel, the original tenant, to whom the tack was granted, excluding assignees, and who, notwithstanding thereof, had subset the whole to Scrimgeour, was barred from quarrelling his own subset; neither was the master's concurrence, by letter, to be party in the process, held to be sufficient, unless he brought a proper action. The master's right to interfere is established, 1 New Coll. No. 117; but he must do it in a proper manner.

By the decision 1747, December 4, Elliot against Duke of Buccleugh, it is established, that a tack excluding assignees per expressum cannot be adjudged. Upon this principle, John Mosman and George Hepburn having both adjudged a tack granted by Lord Hoptoun to Christie, excluding assignees, and his Lordship having given his concurrence to Hepburn, he was preferred, and Mosman not allowed to come in pari passu.

A tack, though a personal grant, it is thought would go to heirs, though not mentioned in the tack. There is no printed decision where this has been found, but rather on the contrary. It was strongly contested in the case mentioned by Lord Kilkerran, p. 538, Watson against Thomson, in November 1750; and in these papers several cases are marked for the master, and none for the heir; yet it is probable that the heir would carry it upon the maxim, Qui providet sibi, providet hæredibus.