Scottish Court of Session Decisions

Subject_1 JUS TERTII.
Subject_2 SECT. IV.

Objections, &c. competent to some and not to others.

Earl of Galloway
v.
M'Culloch

Date: 13 December 1626
Case No. No 62.

In a reduction of a sub-tack, in which the tack-duty was payable to the principal tacksman, found jus tertii to the intermediate tenant to plead the irritancy of failure of payment. Although he had raised inhibition, he did not come in the place of the principal.

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In a reduction of a sub-tack pursued by the Earl of Galloway contra M'Culloch, who was sub-tacksman to another, principal tacksman to the pursuer, and which sub-tack was also consented to, and subscribed by the pursuer, setter of the said principal tack; the reason of reduction was, because the principal tack was reduced, where-through the sub-tack depending thereon behoved to fall; likeas, the said sub-tack had a clause irritant therein inserted, that if the sub tacksman fail in paying of his tack-duty at the terms appointed therein, that the sub-tack should be null; so it was subsumed that he had failed. The Lords assoilzied from these reasons, because albeit the principal tack was reduced, (it being reduced for not production, and in absence of the party, and this sub-tacksman not being called to that reduction) that was found no ground wherefore the sub-tack should fall, seeing it was subscribed, and consented to by the pursuer, and so who could not be prejudged by that decreet, whereto he was not called, and who could not be mis-known by the pursuer, if he had intended that the sub-tack should fall, having consented thereto; and sicklike the failzie of the clause irritant, contained in the sub-tack, was not any reason competent to this pursuer, who had consented to the sub-tack, wherein he was astricted to pay his duty to the setter of the sub-tack, and not to the pursuer, which setter quarrelled not the defender upon the said failzie; and this was so found, albeit the pursuer replied, in fortification of the reason, That by the reduction of the principal tack, and by serving of inhibition since, at the pursuer's instance, upon the teinds contained in the tack, the pursuer was become in the place of the principal tacksman, whose right was taken away by the said reduction, and the pursuer thereby had devolved in his person all the right to the teinds, which the principal tacksman had, and that consequently the right to the duty addebted by the tacksman belonged to the pursuer, and the defender ought to have paid the same to him, especially seeing the inhibition foresaid, served at the pursuer's instance, was intimated to this same defender, in so far as he had intented thereupon action of spuilzie of these same teinds against the excipient; from the which albeit the defender obtained absolvitor, in respect of an exception proponed by him, founded upon this sub-tack then standing, yet the same was of that force to make it known to the defender, that the pursuer had right to the duty of the sub-tack, and that he ought to have paid the same to him, for eschewing of the clause irritant; it being of verity, that at no time sincesyne, nor since the intenting of this action (there being diverse terms past since the raising thereof) the defender hath never offered, nor paid his duty of his sub-tack to the pursuer; all which was repelled, and absolvitor given, as said is; for the Lords found, that the pursuer could not seek declarator upon the failzie of the sub-tack, except first that the pursuer had obtained it declared, that the right of the duty thereof was established in his person, as succeeding in the place of the principal tacksman, and that the defender ought to pay the same to him. See Res inter alios.

Act. Stuart & Neilson. Alt. Scot. Clerk, Scot. Fol. Dic. v. 1. p. 522. Durie, p. 245.