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Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 WINTER SESSION. - Anni 1973.
Thurston's Creditors Competing
1676.
February.
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The Lords, in February, 1676, determined in the case of George Lawson, Bailie Carmichell, Captain Alison, and other creditors of Thurston, competing on the priority of their diligences, that one who has a decreet for poinding of the ground, upon an infeftment of annualrent, can poind for no more than the tenant's year's rent, or what he is then owing to his master. Which, as it is most equitable towards the preservation of poor tenants from being harassed, herried, and for encouragement of labourers of the ground; so it is in effect no more than what is enjoined by the 36th act in 1469, discharging them to be distressed beyond a terra's mail: and though the tract of decisions ran for a long time, that the said act of Parliament intended only to regulate poindings on personal debts owing by the master of the ground, but did not extend to, nor concern poinding upon a real right and infeftment; the nature whereof carried to the first and readiest of all was upon the ground, without regard what the possessors were owing resting to their master, or if the goods poinded were truly theirs, or belonging to other men, and there only a-grazing or casually; and this aye and while the poinder's annualrent was paid. See this in terminis found in Dury, 11th July, 1628, Lady Ednem contra the Laird. And though strict law may dictate this distinction, yet I think the Lords' resolution in this last case making no difference at all, by far the more equitable and just.
See alibi, where the Lords, in July, 1676, preferred the whole other creditors to Bailie Carmichell, because his right was granted by a bankrupt postquam fugam arripuerat.
