The proprietor of the teinds of another person's land, cannot intromit brevi manu.
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In a spuilzie by James Nasmith against Hume of Carrolside, the defender defending himself with a tack of the teinds alleged spuilzied, whereupon he had served inhibition, and, conform thereto, he had meddled with the teinds libelled; he alleged, That he could not be repute a spuilzier in so doing, conform to a lawful right, specially to produce this action against him, at his instance, who had no right to these teinds, and who, if he had intromitted therewith, would have been subject in spuilzie to this same excipient therefore. This exception was repelled, for the Lords found, That albeit the pursuer had no right to the teinds libelled, and the defender had right to the samine only, yet that the defender could not, brevi manu, without a warrant of a judge, or sentence, enter himself to the possession of these corns, which were sown and win by the pursuer, from off the land pertaining to the pursuer in heritage, and that he could not enter to take the teind at his own hand, without concourse or consent of the pursuer, who was heritor and labourer of the land, as said is, he not concurring with the defender to the teinding of the same, and to his intromission therewith.
Act. Nicolson & Burnet.Alt. Lawtie.Clerk, Scot.
Fol. Dic. v. 1. p. 115. Durie, p. 337.*** The same case is reported by Spottiswood:
In actions of spuilzie where diverse parties are convened after litiscontestation, it divides among them, pro virilibus portionibus.
James Nasmith of Possaw pursued Mr John Hume of Carrolside for spuilzie of the teind sheaves of Coldingknows.—Answered, That he had right thereto by virtue of a tack comprised from the Laird of Coldingknows by the Laird of Weems, and assigned to him.—Replied, Albeit he had never so good right, yet he should never have intromitted with his teinds against his will, till first he had served inhibition, and gotten decreet thereupon before the Lords; which was found relevant, and the exception repelled: For none can enter into any man's possession without his own consent, but by order of law, albeit his right were never so good.
Spottiswood, (Ejection.) p. 90.*** Auchinleck likewise observes this case:
A tacksman of teinds, notwithstanding that he serve inhibition, yet may not brevi manu lead or intromit with the teind, whereof he nor his author was in use to lead the teind before, but ought to pursue the spuilzie; and, if he intromit at his own hand, he commits spuilzie.
