Citation in Processes of Mails and Duties and Removings.
La Maxwell v. Her Tenants
Date: 15 July 1628 Case No. No 94.
Where a rental bore an express prohibition to assign or subset, it was not found necessary to call the rentaller. See No 91.
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In the removing Lady Maxwell, whereof mention is made July 10. 1628*, the pursuer replying, that he could not clothe himself with that rental, because it bore that provision, “That if the rentaller should put any other in possession of the land, except only himself, that then it should be null;” so that if the rentaller's self were pursued to remove, the rental would not defend him, far less can it defend this excipient; and the excipient answering, That he could not be compelled to dispute upon that right, which was not set to himself, but the rentaller should be summoned, who is not called in this process, before the rental could be drawn in dispute upon any nullity, whereto he would answer:——The Lords, notwithstanding that the rentaller was not warned, nor summoned, sustained the foresaid reply against the excipient, whom the Lords found ought to dispute for maintaining of that rental, which was the ground of his possession, and whereupon he founded his exception.
