Subject_1 IMPLIED DISCHARGE and RENUNCIATION. Subject_2 SECT. IV.
Removing, how past from.
Lindsay v. Tenants
Date: 21 January 1579 Case No. No 19.
A decree of removing was found to be renounced by the pursuer after obtaining it, receiving the rent from the tenant.
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There was one Margaret Lindsay, and Mr James F. her spouse, for his interest, that pursued one for the succeeding in the vice of one A. who answered and alleged, that he ought not to be decerned to succeed in vice, because his author against whom the decreet was given, and also before the warning whereupon the decreet past, set the tack that he had to run of the lands that he was called for the succeeding in the vice into, and renounced, and gave ever all kindness, right, and title that he had to the said lands to the said A. which proceeded upon the said warning. To this was answered, That he could not allege that decreet, because that since the giving of the same, he had received the mails and duties of the lands, and so had tacite passed from the same. To this was answered, That albeit he had received the mails and duties, yet he had not passed from the decreet, but only from the execution of the same, and the decreet ought yet to serve for declaratoria juris, so that he against whom it was given could never make any right thereof to any other person. The contrary was alleged directly by the other party, that the receiving of the mails and duties took away the decreet in toto, and that no violence could be sought after the receiving of the mails and duties, so there could be no succeeding in the vice. The Lords found by interlocutor, that the defender ought not to be decerned succeeded in the vice, and so admitted the exception, and that the receiving of the mails and duties, after the giving of a decreet, takes away the same in toto as was practised in the action betwixt the Earl of Morton and the Laird of Laggat.
