Scottish Court of Session Decisions

Subject_1 REMOVING.
Subject_2 SECT. IX.

Effect of an obligation to remove without warning.

Freeland
v.
Monteith

1586. November.
Case No. No 117.

Found, that where there was a specific obligation to remove at the expiry of the lease, the proprietor might enter to possession without declarator or warning.

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In an action pursued by George Freeland, tenant to the Earl of Marr, against William Monteith of the Gogar, the said George, pursuer, having got a libel of ejection against the defender, et in termino assignato the witness being produced, the defender proponed a new exception, and made faith that the same was made, as newly come to his knowledge, and offered to prove the same by writ. It was alleged, That the defender ought not to be heard to propone the same post litem contestatum et statutum terminum probatorium. The Lords nevertheless, in respect the defender offered to prove the same by writ, et non aliter aut alio modo, found that they would admit the said exception.

In the same action there was an exception proponed, as said is, that the defender had committed no ejection, because it was expressed in the tack set by the Laird of —— of the lands out of which the pursuer alleged him to be ejected, that after the issue of the tacks it should be leisome to the said Laird, upon the offer of L. 20 to George Freeland to whom the tack was set, without any precept of warning or removing, or other order of law, to enter to the ground, he taking his mains and the said lands, which was a portion of the same, into his own hands; and true it was, that, conform to the said clause expressed in the said tack, the said Laird made offer of the said L. 20, and, upon his refusal, and instruments taken, the Laird entered to his own lands, and thereafter disponed the same to the said William Monteith the defender. To which was answered, That notwithstanding the said clause in the tack, (if such was) the Laird could not enter, nor no other person substituted by him at his hand, but it behoved them to have sought declaratoria juris; and the form and order prescribed by the act of Parliament, in warning of tenants, ought to have been observed quia quando statuitur forma ex dispositione legis ea specifice sequenda est; and so, except it were alleged that either declarator or warning had passed, the said Laird could not have entered to the ground, or possessed any other person in the same. To this was answered, That there needed no declarator to have passed by reason of the clause contained in tack, quæ fuit provisio hominis quæ cessare faciebat provisionem legis, prout in L. 23. “sed hæc ita,” D. De regulis juris; et in generalibus provisionibus, de quibus specialiter sit provisum, sive utraque provisio, vel sit legalis vel hominis, sive altera legalis altera hominis: Vide Bald. in titulo, Si certum petat. And so, notwithstanding of the provision contained in the act of Parliament, anent the warning of tenants forty days before the term, by reason of the said provision contained in the tack ex connectione legum accipiunt, there needed no other declarator, but the setter of the tack, after the ish of the years and terms expressed in the same, might, according to the condition therein expressed, enter to the real possession and occupation of the said ground. The Lords pronounced, that there needed no declarator or warning, and that the setter of tack, according to the condition therein expressed, ought to enter to the ground without any warning.

Fol. Dic. v. 2. p. 338. Colvil, MS. p. 411.