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Scottish Court of Session Decisions >>
Mr Robert Hepburn, Writer to the Signet, v George Richardson. [1726] Mor 6205 (00 January 1726)
URL: http://www.bailii.org/scot/cases/ScotCS/1726/Mor1506205-011.html Cite as:
[1726] Mor 6205
Mr Robert Hepburn, Writer to the Signet, v. George Richardson
1726.
January. Case No. No 11.
The master's hypothec upon his tenant's flocking subsists three months after the year's rent falls due.
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William Jamieson had a tack from Mr Robert Hepburn, whereby he was bound to pay him a silver tack-duty for every year of his possession, the first half at Martinmas, the other half at the Whitsunday thereafter. George Richardson, a creditor of Jamieson, upon the 10th June 1724, carried off his cattle and other stocking, by virtue of a poinding, leaving nothing on the ground but the fruits that were growing. Upon this, Mr Hepburn, as landlord, intented an action against the poinder; concluding, that he having intromitted with the pursuer's tenant's goods, though in virtue of a poinding, was liable for the whole rent 1723, the goods poinded standing hypothecated for that year's rent. The defence was, That there being a hypothec upon the stocking only for one year's rent, the hypothec for the year 1723 ceased at Whitsunday 1724; and the defender having poinded that stocking near a month thereafter, is secure. To which it was answered, Though the hypothec upon the stocking is but for one year at once, still, after the last term of payment of the year's rent, a competent time must be allowed to make the hypothec effectual to the master; which cannot be during the currency of the term, before the rent is due. Now, this time must depend much upon the discretion of the landlord; and neither reason nor custom hath restricted it to so narrow a space as a month after the term of payment; especially considering, that it is the interest of tenants more than of masters, that it continue longer; for it is certain, if the hypothec be found to last but till the next day after the term, it will oblige masters to prosecute their tenants for their rents the very term day, which will be an intolerable rigour; and therefore as it is every where esteemed a well paid rent, when one term is discharged before another comes on, the hypothec ought to last till the term next following the term of payment of the rent.
“The Lords found, That the master has three months after the term of payment, to do diligence upon his hypothec against his tenant and stocking.”
Fol. Dic. v. 1. p. 416. Rem. Dec. v. 1. No 76. p. 152.
