Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 TACK.
Subject_3 Power of Subsetting implied in a Lease of Nineteen Years.

Archibald Duff of Drummuir
v.
James Day

Date: 10 March 1769

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The defender possessed a farm belonging to the pursuer, on a lease for nineteen years, in which no mention was made of a power of assigning or subsetting. The defender having subset a part of the lands, an action of removing was raised by the pursuer against him and his subtenant. In defence, it was stated that, as the lease did not debar subtenants, the power of subsetting was implied; and it was so found by Lord Strichen, Ordinary. In a petition, it was—

Pleaded by the Pursuer,—That the doctrine of the defender was opposed to the authority of Stair, lib. 2, tit. 9, sec. 22 and 26; M'Kenzie, lib. 2, tit. 6, sec. 8; and Bankton, vol. 2, p. 97; and that the opinion of these writers was supported by the understanding and practice of the country.

Answered,—When these authors wrote, tacks did not receive so liberal an interpretation as is now put upon them. Moreover, their opinions are not supported by any decision, while there is a series of decisions on the other side: Earl of Morton against Tenants, 14th July 1625,—Howe against Craw, 25th February 1637,—Mather against Lord Tarras, February 1687,—Rochead against Mudie, March 1687.

The following opinions were delivered:

Monboddo. I am of the opinion of the two decisions mentioned by Harcarse. This is agreeable to the Roman law, where the conductor might use the subject as he pleased. I can account very well for the opinion of the lawyers who doubted as to the power of subsetting. This was from feudal principles, where not land, nor money, but men were considered; and it was of moment what sort of persons were introduced into the estate of the lord: but these ideas are now obsolete.

Hailes. I doubt whether the lawyers of the last age meant that a lease for so long a term as nineteen years could not be subset, when subtenants were not excluded. Lord Stair considers a lease of nineteen years as approaching to a perpetuity; and, although this is erroneous, yet it shows that a tenant with nineteen years' lease was considered as having a great interest in the subject let. When a lease is granted for such a term, there can be no great delectus personœ, because no man's life is worth so many years' purchase.

Kaimes. I never doubted, since I was a lawyer, that a tack for nineteen years allowed subsetting, if not prohibited.

On the 10th March 1769, “The Lords found that the defender, in virtue of his minute of tack, accepted by the pursuer, is entitled to possess the lands libelled; and, as he is not thereby debarred from subsetting the same, therefore assoilyied the defender;” adhering to Lord Strichen's interlocutor.

Act. A. Lockhart. Alt. Cosmo Gordon.