A tack clad with possession before the treason, and set for a sufficient rent, and for an ordinary endurance, is valid against forfeiture.
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In an action of removing persewed be Alexander Home of Manderston, donatar to the lands of Oldhamstocks, be forfalting of N. Hepburn, Laird of Riccarton, against certain tenants of the said lands; the Tenants answerit, They had tacks for terms to run set to them be the said Laird of Riccarton, long before the said forfalture, and they had been diverse years in possession of the said tacks given before the said forfalture. The persewar replyit, That long before the date of the said tacks, the lands were become in the King's hands be forfalture of my Lord Bothwell, immediate superior to the said Laird, igitur, the Laird of Riccarton's lands then came in forfalture, and so the tacks were set be him who had no power to set them; the which reply was fund relevant, and in respect thereof, the exception repellit. This was but for ane part of the tenants; but other of the tenants ansrit, That they had tacks for terms to rin, set to them be the Laird of Riccarton, before the Earl Bothwell's forfeiture, and so be him who had power to set the same. The persewer replyit, That the exception should be repelled, because the Lord Bothwell superior, and also Riccarton proprietor being forfaltit, the King who wald not have regairdit an heritable infeftment given be Riccarton at the time of the said assedation, but wald remove the heritable tenants, meikle more aught the tacksmen to be removit at the King's instance and his donatar's. The reply was repellit be the Lords, and tacks ordained to stand to the issue of their assedation, notwithstanding the forfalture; because the King having the maills and duties of the lands is not defraudit as he is be the heritable infeftments, and therefore sould not remove the poor tenants having leisomely obtained the said tacks be their awn geir, of them who were not, nor yet their superior convict of the said crimes wherethrough forfaulture might have followit; and the like practic was between John Lesly of N. and ——————.
Fol. Dic. v. 1. p. 313. Maitland, MS. p. 229.*** Balfour makes the following observation on this case:
All landis and tenandries haldin in chief of ony man that is forfaltit, and not lauchfullie confirmit be the King, cumis in his Hienes's handis be ressoun of foirfalture.
