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Scottish Court of Session Decisions >>
Harry Sinclair of Carloury v Alexander Inglis and Others, Tacksmen of Langton. [1705] 4 Brn 600 (9 January 1705)
URL: http://www.bailii.org/scot/cases/ScotCS/1705/Brn040600-0094.html Cite as:
[1705] 4 Brn 600
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Harry Sinclair of Carloury v. Alexander Inglis and Others, Tacksmen of Langton
Date: 9 January 1705
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Harry Sinclair of Carloury being infeft in Cockburn of Langton's estate for security of 20,000 merks, and preferred in the decreet of ranking, and wanting a year's annualrent preceding Lammas, he gives in a petition to the Lords, craving a warrant against Alexander Inglis and other tacksmen, to pay him out of their tack-duty of 3000 merks, which they are obliged to pay yearly to the creditors.
Answered,—That the crop 1704 was not, by their tack, payable till Lammas 1705; and he behoved to abide his time: And, for the rent 1703, they had counted for it, and had obtained a decreet of exoneration. Replied,—Their conventional terms, inserted at their own hand in their tack, could neither alter nor prejudge the terms of payment contained in the creditors' bonds: And, as for their exoneration, he was not called to it; and they could not misken his right, which they knew to be preferable; and so was null quoad him.
The Lords being straitened how far their tack could innovate or change the creditors' terms of payment, therefore, as a medium, they ordained the tacksmen to pay him two years' annualrent at Lammas next. By which he was cast a year behind in the payment of his annualrent due from Lammas 1703 to Lammas last 1704; and which is superseded to Lammas 1705; and so procrastinates his term of payment. But the Lords can no more prorogue and postpone the creditors' term of payment than they can antedate or anticipate it.
