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Scottish Court of Session Decisions >>
Mary Countess of Cassillis v The Earl of Ruglen. [1713] Mor 16334 (18 February 1713)
URL: http://www.bailii.org/scot/cases/ScotCS/1713/Mor3716334-256.html Cite as:
[1713] Mor 16334
A tutor who had intromitted as such, with several years rent of his pupil's lands, held taxward of the Crown, no further liable, after his office of tutory was expired, to the donatar of the taxward-duties of the said lands, than in quantum he had in his hands of the pupil's rents.
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The Countess of Cassillis, as donatar of the taxward-duties of some lands held by the Earl of Cassillis of the Crown, pursued the Earl of Ruglen, as intromitter with the rents of the said lands the years libelled.
Alleged for the defender: Any intromission he had being as tutor to the Earl of Cassillis, he could not be liable to pay the taxward-duties, unless he had as much of his pupil's rents in his hand as would satisfy the same; because, 1mo, The casualties gifted being debitum fundi, and not fructuum, intromitters with the rents are not properly liable, but the ground; as preferable annual-renters will have no action of repetition against intromitters with by-gone years rents, but only a poinding of the ground, which is restricted by law even against tenants, to the value of certain terms' rents; 2do, The defender's intromission was necessary, which his office obliged him to, and also to apply the same to the sustenance of his pupil, payment of his debts, and his other necessary exigencies; nor could the pursuer have repeted from the creditors, whom the defender paid, had these arrested, or done other diligence, according to the nature of their rights; and as little can she repete from the defender.
Answered for the pursuer: The taxward-duties being debitum fundi, affect all intromitters, as well as the ground. And as a master hath hypothec upon the fruits for the current year's rent, much more is this competent to the superior for his feu-duty, or other services, contained in the reddendo of his vassal's charter. Now, the pursuer insists only for the taxward-duties of the several years intromitted with by the defender, who cannot pretend to be free, except in quantum intus habet of the rents not disposed of for his pupil's use, seeing he, as tutor, could not be ignorant of the taxward-duties belonging to the Sovereign, which are preferable to all creditors, and bona fide dispose thereof to other uses.
The Lords found, That the Earl of Ruglen having intromitted as tutor to the Earl of Cassillis, is no further liable to the pursuer than for what of the pupil's rents was in his hands.
