ANSWERS FOR JOHN and WILLIAM CUNINGHAMS and Company, brewers in Glaſgow; JAMES HOTCHKIS and Company, brewers in Edin⯑burgh; and JAMES GRAHAM vintner in Glaſgow; for them⯑ſelves, and as truſtees for the other creditors of WILLIAM M'GREGOR late tenant in the lands of Parkhall, and others: TO The PETITION of ROBERT HAMILTON of Wiſhaw.

THE general queſtion at iſſue between Mr Hamilton of Wiſhaw, and the other creditors of M'Gregor, in the proceſs of multiple poinding, preſently depending in this Court, is, Whether the various tacks which Wi⯑ſhaw had granted to M'Gregor of ſundry farms for a long courſe of years, adjudged by Wiſhaw himſelf as a creditor of M'Gre⯑gor's, were alſo adjudgeable by M'Gregor's other creditors, ſo as to bring them in pari paſſu with Wiſhaw, theſe being within year and day of Wiſhaw's adjudication?

IT was objected on the part of Wiſhaw, That as ſome of theſe tacks, particularly that of Eaſter-Park and Birkenhill, though granted to M'Gregor and his heirs for a term of no leſs than 57 years, excluded aſſignees and ſub-tenants, except by the ſpecial conſent of the proprietor, ſuch tacks were not adjudgeable.

[2]IT was on the other hand contended for the creditors, That however effectual ſuch clauſes might be to exclude voluntary aſſig⯑nees, they could not be effectual to exclude the legal diligence of creditors by adjudication, eſpecially in tacks ſuch as theſe, for ſuch a long term of years, granted to the leaſee and his heirs, in which there could be no dilectio perſonarum. 2dly, That whatever ſhould be the judgment of the law upon this point, the tack of Eaſter-Park and Birkenhill was attended with ſuch ſpecial circum⯑ſtances as ought to diſtinguiſh it from the other leaſes containing the like clauſe; in ſo far as it was thereby conditioned, that M'Gregor ſhould be at liberty to ſubſet thoſe parts of the lands which lay on the ſouth ſide of the toll-road, during the firſt nine⯑teen years of the leaſe; and in ſo far as it was thereby alſo con⯑ditioned, that Wiſhaw ſhould be at liberty to make void ſaid tack at the term of Martinmas 1799, upon his making payment to M'Gregor of L. 70: 5: 2 Sterling. 3dly, As Wiſhaw had ſtated certain objections to the adjudications of the other creditors found⯑ed upon an alledged pluris petitio, and had thereupon prevailed in obtaining the whole of theſe other adjudications, that of James Graham only excepted, to be voided in totum, the creditors upon their part ſtated certain objections to Wiſhaw's adjudication, as ſufficient to void it alſo in totum, whereby the other creditors and he would be ſo far in pari caſu.

THE reſult of all which was, that the Lord Auchinleck Ordina⯑ry, by ſeveral interlocutors ſtated in the reclaiming petition for both parties, ſuſtained the objection pleaded for Wiſhaw, founded upon that clauſe of the tack of Eaſter-Park and Birkenhill, ex⯑cluding aſſignees and ſub-tenants; and found ſaid ſecluſion effec⯑tual, not only againſt voluntary aſſignees, but alſo againſt legal aſſignees by adjudication; and conſequently that the creditors of M'Gregor, by their adjudication of the tack of Eaſter-Park and Birkenhill, can take nothing, and have no title to compete with Wiſhaw.

2dly, As Graham's adjudication was free from the objection of the pluris petitio, and does, inter alia, adjudge the tack of Eaſter-Park and Birkenhill, his Lordſhip found the ſame effectual to carry ſo much of the lands of ſaid tack as M'Gregor was at liberty to ſubſet; and that it was equally effectual to carry the ſum of [3] L. 70, which by ſaid tack Wiſhaw was bound to pay to M'Gre⯑gor in the event of his taking advantage of the breach thereby al⯑lowed to him. 3dly, His Lordſhip repelled the objections ſtated by the other creditors to Wiſhaw's adjudication. The firſt and laſt of theſe points was ſubmitted to your Lordſhip's review by a re⯑claiming petition at the inſtance of the other creditors, and which, with the anſwers thereto made on the part of Wiſhaw, is hitherto unadviſed.

BUT Wiſhaw, not ſatisfied with the advantage thereby gained over the other creditors, at leaſt equally onerous, has, alongſt with his anſwers to the creditors petition, preferred a reclaiming peti⯑tion upon his part, praying an alteration of thoſe interlocutors whereby Graham's adjudication is found effectual to carry the a⯑foreſaid tack of Eaſter-Park and Birkenhill, quoad ſuch part of the lands therein contained as M'Gregor was empowered to ſubſet, as alſo to carry the L. 70 which Wiſhaw was bound to pay to M'Gregor in the event of his taking advantage of the breach in the tack thereby allowed; which counter-petition being appoint⯑ed to be anſwered, the following anſwers are humbly ſubmitted.

AND in the entry it is proper to obſerve, That, if the creditors ſhall prevail by judgment of your Lordſhips in having it found, that the clauſe in all or any of the tacks granted to M'Gregor by Wiſhaw, excluding aſſignees or ſub-tenants, does only exclude vo⯑luntary aſſignations, but not the legal diligence of creditors by ad⯑judication, that will of courſe ſuperſede any judgment upon the points ſtated in Wiſhaw's reclaiming petition: But uncertain, as the creditors are, what the judgment of the Court may be upon that capital point, they will confine what they are now humbly to offer in ſupport of the Lord Ordinary's judgment, upon the other two points complained of by Wiſhaw.

IN the more early periods of the law, tacks were eſteemed mere perſonal contracts, and therefore, however effectual againſt the granter and his heirs, were not binding upon third parties, ſingu⯑lar ſucceſſors in the lands; and viewing them in that light, were ſo ſtrictly interpreted, as to exclude either aſſignees or ſub-tenants, without any expreſs covenant to that purpoſe: But when tacks were by ſtatute rendered real rights, as the rigour and ſeverity of [4]the law in other particulars was gradually abated, and as it is now an eſtabliſhed law that leaſes may be granted to ſubſiſt for any gi⯑ven length of time, it is adverſe to every principle of juſtice, that any beneficial eſtate ſhould be placed beyond the reach of lawful creditors, though this muſt be the unavoidable conſequence of the doctrine here maintained on the part of Wiſhaw. The granting an aſſignment or ſub-tack does not annul the principal tack; ſo that if this tack, however beneficial, was not to be adjudgeable, M'Gre⯑gor would be intitled to hold the ſame, and laugh at his creditors.

IN a tack of this endurance, which is nearly equal to a perpe⯑tuity, there could be no dilectio perſonarum, the heirs of the leaſee being equally unknown to the leaſor as any other perſons. And if the creditors are well adviſed, this ſuppoſed dilectio perſonarum, in the choice of a particular perſon, is the only ſolid principle upon which the excluſion of aſſignees or ſub-tenants can be juſtified. The ſecluſion of aſſignees and ſub-tenants, by a clauſe in the tack itſelf, cannot operate more ſtrongly than the excluſion by force of the law: So that as, in the one caſe, the diligence of creditors by adjudication was not underſtood to be excluded, no good reaſon can be aſſigned why, in the other caſe, the expreſſing what would be implied, ſuppoſing the tack had contained no ſuch clauſe, ſhould produce ſo much a ſtronger effect. Such is plainly the import of the clauſe reſpecting ſubſets, which could only be granted by the voluntary act and deed of M'Gregor; and there is equal reaſon that the ſame conſtruction ſhould take place with regard to aſſign⯑ments, the clauſe being one and the ſame as to both.

AND when to this is added the faculty or power of ſubſetting, allowed by this tack, of ſo large a part of this farm, for a term of no leſs than 19 years, it furniſhes a ſtrong handle, that the clauſe ſecluding aſſignees and ſub-tenants, was only meant to exclude voluntary not legal aſſignees.

SUCH is plainly the import of the clauſe with reſpect to ſubſets. If M'Gregor had granted a ſubſet for a term of 19 years of that part of the farm which he was ſpecially authoriſed to ſubſet, there cannot be a doubt that the ſame muſt have been effectual, and conſequently, that the benefit ariſing to M'Gregor by that ſubſet muſt have been adjudgeable by his creditors, as the law will [5]never permit any beneficial right belonging to a debtor to be placed without the reach of his lawful creditors. It is true that M'Gregor has not in this caſe granted ſuch ſubſet, but by con⯑tracting debts he has done what is equivalent, as the law will ad⯑judge every right that was in him, or that he had power to grant, in payment to his creditors. If M'Gregor had granted a ſubſet of theſe lands to his creditors, with power to them to apply the ſurplus-rent over and above a juſt proportion of the total tack-duty, in ſatiſ⯑faction of the debts due by him to his creditors, a ſubſet in theſe terms would not have been challengeable by Wiſhaw; or if he had granted ſuch ſubſet to any third perſon for an advanced rent, his lawful creditors muſt have been intitled to have taken the be⯑nefit thereof for payment of their debts; and there is no other me⯑thod known in the law by which this could be obtained but by adjudication of his intereſt in the tack itſelf, and ſub-leaſe, in ſo far as he had power to ſubſet.

WISHAW is indeed pleaſed to contend, That the tack being uni⯑cum quid, for which one tack-duty is paid in cumulo, the creditors cannot be allowed to adjudge part of the tack for which no parti⯑cular rent had been fixed by agreement between him and M'Gre⯑gor, and that he cannot be obliged to ſubmit to the diviſion of the rent by the conjectural eſtimation of witneſſes.

BUT was this to be the conſequence of the power and liberty to ſubſet this part of the farm, Wiſhaw would have himſelf only to blame for granting the leaſe in thoſe terms, which he ought to have foreſeen might be productive of ſuch conſequences. There is no difficulty in aſcertaining what part of the total rent corre⯑ſponds to the different parts of this farm. This muſt have been in the view of parties, when liberty was granted to M'Gregor to ſub⯑ſet a certain part thereof. The ſubſet behoved to aſcertain a rent or tack-duty payable by the ſub-leaſee for that part of the ground allowed to be ſubſet. And as Wiſhaw could not have demanded from the ſub-tenant more than the tack-duty payable by the ſub⯑ſet, it is plain, that the diviſion of the rents correſponding to the grounds retained or ſubſet, muſt have been in the view of parties.

[6]And as Wiſhaw has himſelf adjudged this tack, it demon⯑ſtrates his own ſenſe and underſtanding of the matter, viz. That the clauſe, ſecluding aſſignees and ſub-tenants without the con⯑ſent of him the proprietor, intended no more but an excluſion of voluntar aſſignees. The adjudication which he himſelf took, can bear no other conſtruction. That is his only title in this compe⯑tition; and if it was adjudgeable at his inſtance, it muſt be e⯑qually competent at the inſtance of M'Gregor's other creditors, eſpecially as to that part of the farm which M'Gregor was em⯑powered to ſubſet.

WISHAW is indeed pleaſed to content, That there is a mate⯑rial difference between a power to aſſign and to ſubſet, in this reſpect, that an aſſignation denudes the principal tackſman of the leaſe altogether, and veſts the right wholly in the aſſignee; where⯑as a ſubſet does not denude the principal tackſman, who remains ſtill liable for the total rent.

THE creditors cannot agree to this diſtinction; becauſe, how⯑ever true it may be that an aſſignation transfers the whole right to the aſſignee, it will not from thence follow, that the cedent is thereby liberated from his original obligation for payment of the rent or tack-duty. The maſter may thereby have the ſuper⯑added ſecurity of the aſſignee's being alſo bound for payment of the rent, but which can never liberate the original tackſman from the obligation which he had came under to make good the rent during the whole years of the leaſe; ſo that, in this reſpect, the aſſignee and ſub-tenant are in pari caſu.

IF A, by minute of ſale, ſhall diſpone lands to B, his heirs and aſſigns, whereby B is taken perſonally bound in payment of a certain reddendo or duty, though B is at liberty to alienate the ſubject, and will no doubt ſtipulate relief from the diſponee of the reddendo payable to his author A, that will never liberate B, the firſt diſponee, from the perſonal obligation he had come under from being liable to A, in payment of the reddendo for which he was perſonally bound. And no reaſon can be aſſigned, why a different rule ſhould obtain with reſpect to a leaſe con⯑taining a power to aſſign, as the granting ſuch aſſignation can⯑not liberate the original leaſee from the obligation which he had [7]come under to pay the rent or tack-duty during the whole years of the leaſe. The aſſignee may be bound to relieve him thereof at the hands of the leaſor; but he muſt ſtill remain bound to the heritor for payment of the rent, in terms of his perſonal ob⯑gation.

THE power and faculty of ſubſetting ſo large a part of the farm demonſtrates this propoſition, That there was here no dilectio per⯑ſonarum, when M'Gregor was at liberty to ſubſet to any perſon he thought proper; and as the granting ſuch a ſubſet muſt, in the nature of things, have required a diviſion of the rent payable for the lands ſubſet, from the total rent or tack-duty, the adjudica⯑tions taken againſt M'Gregor muſt be effectual to carry his inter⯑eſt both in the tack and ſubſet, ſo far as regards the lands which he was empowered to ſubſet: And thus far the Lord Ordinary's interlocutor falls to be affirmed.

THE other point determined by the Lord Ordinary's interlocu⯑tors, viz. That the adjudications deduced againſt M'Gregor were equally effectual to carry the L. 70 Sterling which Wiſhaw was bound to pay to M'Gregor, in the event of his taking advantage of the breach allowed by the tack, depends upon the ſame princi⯑ples, and muſt be governed by the ſame rules, viz. That as every beneficial right or intereſt competent to a debtor muſt, in ſome ſhape or other, be attachable by his creditors; and as, by the a⯑foreſaid agreement, L. 70 Sterling was aſcertained to be the juſt value of the ſubjects therein mentioned, for the remaining years of the leaſe, in caſe Wiſhaw ſhould take advantage of the breach allowed of by the tack; it would be a cruel caſe, if this ſum, the agreed value of the tack for the remaining years thereof, ſhould be pocketted up by Wiſhaw, in excluſion of the other creditors ad⯑judgers.

THIS ſum was the agreed eſtimation or value of the tack for the remaining years of the leaſe after the 1799. It cannot be of leſs value now, in the 1770, when Wiſhaw means to reaſſume the poſ⯑ſeſſion 29 years before the term ſpecified in the breach. That may be a juſt conſideration for enlarging the premium to be paid, but can never juſtify the attempt that is made to pocket up that ſum, in excluſion of the other creditors.

[8]FOR though it is true that Wiſhaw does not now claim the poſ⯑ſeſſion of theſe farms, in right of the ſtipulated breach, but in virtue of his adjudication, if by means thereof he is to reap that advantage at ſo much an earlier period than would have been the caſe if M'Gregor had continued in poſſeſſion, juſtice requires that he ſhould make good to M'Gregor and his creditors the L. 70 Ster⯑ling, however ſhort of the ſums expended by M'Gregor in the im⯑provement of theſe gounds.

AND therefore, to conclude upon this point alſo, it is hoped your Lordſhips will be of opinion with the Lord Ordinary, that the tack of thoſe lands, ſo far as M'Gregor had power to ſubſet the ſame, is carried by their adjudications preferably to or pari paſſu with Wiſhaw's adjudication, if the ſame ſhall be ſuſtained.