Scottish Court of Session Decisions

Subject_1 HYPOTHEC.
Subject_2 SECT. IV.

Process against Sub-Tacksmen and Intromitters, with Subjects hypothecated. - What if caution or payment has been offered by the Intromitters, or if sufficiency has been left to answer the rent.

A
v.
B

1744. February.
Case No. No 36.

Click here to view a pdf copy of this documet : PDF Copy

The heritor having a hypothec, and after the term is past, detaining the tenant's goods against a poinder, was thought not bound to assign, but only to discharge on payment; nor will the master be found fault with, should his servants, upon general order, stop the poinding, although payment be offered; because the heritor is not bound to be always present to grant a discharge, and it is the creditor's business to apply to the heritor and offer payment of his rent before he proceed to poind; and, therefore, the heritor pursued, as having unlawfully stopped a poinding on pretence of his hypothec, notwithstanding payment was offered to those, who, in the heritor's absence, stopped the poinding, on their giving a discharge, “ was assoilzied, and the pursuer condemned in expenses.”

Fol. Dic. v. 3. p. 292. Kilkerran, (Hypothec.) No 3. p. 273.