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Scottish Court of Session Decisions >>
L. Garthland v Lo. Jedburgh. [1632] Mor 10545 (2 March 1632)
URL: http://www.bailii.org/scot/cases/ScotCS/1632/Mor2510545-010.html Cite as:
[1632] Mor 10545
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The Lord Jedburgh having wadset to the Laird of Garthland some land, received a back-tack for payment of 1200 merks yearly. Garthland raised a summons against him for payment of the back-tack-duty, wherein he concluded, likewise, to have the ground poinded for it, for all years to come. Which conclusion the Lords would not sustain; for the pursuer being infeft in the property, could not seek his own ground to be poinded for any thing due to him out of the said lands.
Spottirwood, (Poinding.) p. 232.*** Durie reports this case:
1632. February 26.
Garthland being infeft in the lands of Swynside by the Lo. Jedburgh, under reversion, and setting back-tack for a certain duty, pursues him and his tenants to hear and see declarator upon his heritable right decerned, and upon his right to the back-tack duty, and that he may have letters to poind the ground therefor; and failing of moveables, that he might comprise the lands, and right of reversion thereof; wherein the Lords found, that the pursuer could not have action to crave that part of the conclusion of the summons, anent the poinding of the ground, for the back-tack duty; for he being heritor of the lands, he could not seek that ground, whereof he was heritor himself, to be poinded, albeit that his heritable right was under reversion, and albeit he craved this poinding, that he might comprise the reversion; for they found, that he ought to seek decreet for his back-tack duty, which being decerned, he might poind the tenant's goods, or those against whom he should recover sentence, or comprise the reversion therefor; but that he could not seek the ground to be poinded, he being heritor, for that tack-duty set by himself as heritor; but, after sentence obtained for that back-tack duty, he might poind, as said is. See 6th March 1632, betwixt these parties, No 45. p. 915.; and 2d March 1631, betwixt them also, No 6. p. 1278. This cause being again called in præsentia Dominorum, the decision here noted was renewed; and it was found, that the heritor could not desire the goods of his tacksman, nor of his subtenants, to be poinded, by this pursuit for the tack-duty, but that he might and ought to pursue personally therefor; and sentence being obtained thereon, he might then poind his debtors therefor, as use is.
