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Scottish Court of Session Decisions >>
James Budge of Toftingal, and his Tutor, v Sir James Sinclair of Dunbeath. [1713] Mor 13890 (21 July 1713)
URL: http://www.bailii.org/scot/cases/ScotCS/1713/Mor3213890-130.html Cite as:
[1713] Mor 13890
State in which the person who removes is bound to leave the property.
James Budge of Toftingal, and his Tutor, v. Sir James Sinclair of Dunbeath
Date: 21 July 1713 Case No. No 130.
Not relevant to assoilzie the defender in a removing, that he had removed himself and sub-tenants from the lands, unless the possession were void, or offered to the pursuer when void.
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In a process of removing from the lands of Benalisky, at the instance of James Budge and his Tutor, against Sir James Sinclair, who had indeed removed, but clandestinely, without offering the possession to the pursuer, and connived at others intruding immediately, into the possession; the Lords found it not relevant to assoilzie the defender, That he had removed himself and his sub-tenants from these lands, unless he had left the possession rid and void, or offered the same to the pursuer when void; for otherwise they thought him liable tanquam possessor, when another entered in his vice, and disappointed the effect of the warning; but the Lords, in the reasoning, made a distinction betwixt possession occupied by an intruder suddenly after the party removed, and intrusion after the possession had been long void, or so long as the heritor might have easily known that it was so.
