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Scottish Court of Session Decisions >>
Crawford v Sir John Stewart. [1737] Mor 10531 (21 January 1737)
URL: http://www.bailii.org/scot/cases/ScotCS/1737/Mor2510531-047.html Cite as:
[1737] Mor 10531
What competent to the heritor upon his hypothec, in the case of a poinding by a creditor.
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Found, that a creditor offering to poind a tenant, may be stopped by the heritor, unless the creditor offer sufficient security for the rent, if the term of payment of the rent be not come; and unless he offer payment of the rent, if the term of payment be past.
Found, that a poinder offering security to the heritor as aforesaid, currente termino, has right to insist for assignation to the rent and hypothec, and may so qualify his offer; nor will it be a good answer for the heritor, that he cannot be obliged to assign the hypothec in prejudice of his own debt of arrears due to him for former years; for, in general, no such objection is competent against assigning, but to one who has himself affected the subject for that debt, in prejudice whereof he refused to assign.
Found also, that corns are only hypothecated for that year's rent in which they grow.
N. B. The hypothec upon corns lasts as long as the subject is extant. The hypothec upon the stock, called the general hypothec, lasts only till the last term of payment of the rent, and for three months thereafter, as was found in Mr Robert Hepburn's case in January 1736, No 11. p. 6205.
During the currency of the term of payment of the rent, the master may stop a poinder, if security be not offered by the poinder, notwithstanding the poinder leave sufficiency of fruits on the ground or in the barn-yard, as was found in Scot of Harden's case in, June 1736, because, by many accidents,these may not be remaining at the term of payment; but if the term of payment of the rent is past, it is enough if the poinder either offer to pay the rent, or leave sufficiency of fruits behind. See No 20. p. 6216.
Where the offering security is enough, it is not necessary that there be also sufficiency left on the ground, as was found in the present case between Mr Crawford of Auchinames, and Sir John Stewart of Allanbank.
Kilkerran, (Hypothec.) No 1. p. 271.
*** See Clerk Home's report of this case, No. 3. p. 6193. voce Hypothec.
