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Scottish Court of Session Decisions >>
Garden of Troup v Dr Gregory. [1735] Mor 2112 (24 January 1735)
URL: http://www.bailii.org/scot/cases/ScotCS/1735/Mor0502112-039.html Cite as:
[1735] Mor 2112
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A creditor of a tenant having arrested the farms in a third party's hand, a cautioner for the tack duty appeared and pleaded preference upon the right of hypothec. Answered, The cautioner cannot plead upon the hypothec, not being assigned thereto by the master. Replied, The master is ex bona fide contractus bound to lend his name to the cautioner for security of the rent, and the cautioner has an interest to plead in the master's name and in his right for preference, that the subject of the master's payment be protected from the tenant's creditors.—The Lords found, that the cautioner not having paid the rent, nor got an assignation thereof from the master, had no right to the hypothec, and therefore preferred the arrester in hoc statu.
