Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 REMOVING.

Falconers
v.
Smith

1777. January.

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Hugh Falconer, merchant in Nairn, and James Falconer at Draikies, commissioners for William Macintosh of Aberarder, pursued a removing, on the Act of Sederunt 1756, before the Sheriff of Inverness, against Finlay Smith, tenant in Tyrick, of Aberarder, in which they obtained decreet in foro. The cause was advocated at the instance of Smith, who pleaded, Primo, That the execution of the summons by the sheriff-officer was signed by the witnesses blank, and therefore was null in terms of the Act of Sederunt 1704. Secondly, That the removing was irregular, in respect that, although his entry was to the houses and grass at the Whitsunday, and to the arable land at the Martinmas, yet the summons was to remove from the whole at the Whitsunday. The Lord Covington, Ordinary, 9th August 1776, sustained both defences and assoilyied; although, as to the first defence, it was pleaded, that the Act of Sederunt 1704 related only to executions by messengers,—(See Executions:) That the contrary was the practice in inferior courts; and that, at any rate, the informality was dispensed with by the appearance of the defender, and the decreets being in foro. And as to the second, that in these highland farms the arable land was a mere figure; that the whole was pasture, and the other nothing,—and therefore the entry to the whole ought to be held to be at the Whitsunday.

On advising a reclaiming petition and answers, the Lords, 17th January 1777, thought the second point clear, and decisive of the cause. Therefore they adhered to the Ordinary's interlocutor sustaining this defence and assoilyieing the tenant, and found it unnecessary to determine the first point as to the execution of the summons. They found no expenses due.

In this cause another reclaiming petition was presented, wherein it was insisted that, by the practice of this estate, and that of many counties both in the North and South of Scotland, even in corn farms, the entry to the whole was at Whitsunday, only the outgoing tenant was entitled to roup and carry off the corn-crop of that year; but not to eat or cut the grass, or to have any other concern with the farm. And for proving of this, evidence was produced, viz. excerpts from the tacks on this estate, and certificates from the Sheriff-clerks of several counties, Inverness, Ross, Nairn, Elgin, &c, as to the practice of these Courts in decreets of removing.

The Lords were moved by this; for, although they were determined to hold firm the rule, that, where the entry is at two terms, the removing must be so too, and executed forty days preceding the first of these terms; yet, as in this case the entry was to the whole at the Whitsunday, only the outgoing tenant allowed to reap and carry off the grain crop as above, they pronounced the following interlocutor:—“Find the process of removing within-mentioned sufficient to remove the respondent from his farm of Tyrick at the term of Whitsunday next 1777: but find that, notwithstanding thereof, he still has right to reap, and carry off the grain crop of said farm; and under this quality decern him to remove accordingly.”