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Scottish Court of Session Decisions >>
L. Ley, Younger, v Kirkwood. [1629] Mor 7195 (5 March 1629)
URL: http://www.bailii.org/scot/cases/ScotCS/1629/Mor1707195-026.html Cite as:
[1629] Mor 7195
Legal Irritancy upon assigning or subsetting. - Rental Rights. - Whether Marriage be such an Assignation as to infer Irritancy?
L Ley, Younger, v. Kirkwood
Date: 5 March 1629 Case No. No 26.
A rental was found not to fall, being assigned, where it bore a power to remove, output, and input tenants, to let subtacks, and to grant subaltern rights.
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A service done by the tenants since the warning, which was a part of the duties used to be paid for the lands, done at command of the pursuer's grieve, and who was sole guider of his affairs, the pursuer, who made the warning, being then in England, the time of the command, and doing of the service, was not found relevant to defend the tenants from removing, by virtue of that warning, for none could prejudge the warning made and subscribed by the master but himself, or some having power from him, whether he had been without or within the country; for no servant might do that but by express warrant to that special effect. Item, a rental set to a man and his wife, during their lifetimes, not bearing to be set during the longest life of them two, but during their lifetimes, was found sufficient to defend the relict during her lifetime, and was found to be expired by the decease of the husband; for otherwise, if the wife had died, and the husband had survived her, it would not have defended him thereafter during his lifetime, which had been unreasonable. Item, a tack set for payment of a hundred merks yearly, to endure ay and while the tacksman were paid of a thousand merks lent to the setter and the tack duty therein allowed to the tacksman for the annual of the said money, was not found sufficient to defend against the removing pursued by the singular successor, for so it had neither ish nor duty. Item, a rental bearing power to the rentaller to remove, out-put, and in-put tenants, and also to place subtenants under himself, and to set subtacks, and give subaltern rights to others, the disposition of such a rental to another made not the same to fall. See Presumption. Tack.
Clerk, Gibson.
Fol. Dic. v. 1. p. 485. Durie, p. 433.
