Subject_1 IMPLIED DISCHARGE and RENUNCIATION. Subject_2 SECT. IV.
Removing, how past from.
La Kilbirnie v. Her Tenants
Date: 12 July 1626 Case No. No 22.
In a removing, this defence was sustained, that since the warning, the defender had done service to the pursuer, which was accepted, and that the service done was part of the old duty of the lands. It was found unnecessary to allege, that the service was required by the pursuer.
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In a removing pursued by the Lady Kilbirnie against her tenants, the Lords sustained an exception proponed for the tenants, founded upon a tack set to them by the Lady, of the lands libelled, with consent of the Laird her husband; albeit she replied, that the tack could not defend them, seeing it was set by her principally (as was confessed by the defenders) with consent of her husband, she then having no right in her person to the lands therein contained; and albeit she had then right, as she had none, yet the tack ought to have been set by her husband, he then being living, and she should have been only made consenter: Far less can the same be sustained, where it is principally set by her, her husband being then living, who had the only right; and she then having no right, and his consent to her deed, which she had no power to do, cannot prejudge her: This exception was sustained, as said is, notwithstanding of the answer, because it was duplied, that the pursuer, after the setting of the tack, acquired a right to the lands, so that her supervenient right must be profitable to the tenants, to make that deed done to them by her to be valid, and to exclude her right, that she could not quarrel the same, being her own deed. In this same process also, the Lords sustained an exception, bearing, that the defenders had done service to the pursuer since the warning, and that the same was accepted by her, without necessity to allege the same to be done at her command, seeing her acceptation was equivalent, being a ratihabition; and found the same might be proven by witnesses, and was admitted so to be proven, without necessity to prove the same by writ or oath; but it was found necessary that the defender should allege and prove, that the foresaid service done by them to the Lady, was a part of the old duty accustomed to be paid for the lands before. See Jus Superveniens.
Act. Cunningham.Act. Belshes.Clerk, Gibson.
Fol. Dic. v. 1. p. 432. Durie, p. 213.
*** Lord Kames mentions a case from Haddington, 14th March 1612, Hairstanes against His Tenants, in which his Lordship says, it was found, that, service done by the tenant after the warning, and before the term of removing, did not invalidate the warning. The case is No 2439, of Haddington, but on a different subject, see Tack.
