Warning, in what Cases necessary. - How to be executed.
Laird Rowallan v. The Relict of Boyd
Date: 13 February 1630 Case No. No 63.
Where a tacksman was bound to give service on horseback, could his relict and children be summarily removed
Click here to view a pdf copy of this documet : PDF Copy
The Laird of Rowallan having set a liferent tack personal to one Boyd, which tacksman dying before Martinmas, after his decease Rowallan immediately raises summons against the relict, for removing from the lands, and to hear it found, that he may enter to the lands; and the relict alleging, That this summary order cannot be sustained against her, but that she ought first to be warned before the term of Whitsunday, as use is in all other ordinary removings; the Lords found, that this summary order of removing ought not to be sustained, and that the relict had no necessity to remove, until the time that she were warned before Whitsunday, conform to the order in other actions of removing; for albeit her husband had only a tack for his lifetime, yet the Lords found this cause to differ from a liferenter's right bruiked by infeftment; in which case the fiar, after the liferenter's decease, gives no warning, but may then summarily remove, and enter to the possession of the land liferented, the same being laboured with the liferenter's own goods; albeit, if the liferenter had set the lands to tenants, eo casu the fiar could not remove the tenants summarily, without warning, but that then he had right to the duty, for which the lands were set by the Iiferenter; but this case of a liferent-tacks man was not found alike, and so that the privilege of the fiar, when the liferent of the fee ceases, is not to be extended further than that case; for the relict of the tacksman was not found to be in a worse case; than if her husband had been a naked tenant without a tack, quo casu the order of warning ought to have been used; and this was found, albeit the Iiferenter possessed, and at his decease laboured the land with his own plough; and albeit the pursuer alleged, that the liferent-tack was set for personal service, of riding on horseback with the pursuer, which he alleged could not be performed by the relict nor by any other person, whom she could furnish to ride with the pursuer, whom she could not choose to the pursuer, seeing he had chosen the person of whom he required the service by the tack, and no other could be substituted by her in his place; notwithstanding, whereof the order was not sustained, but the relict was ordained to furnish a competent man to the pursuer, to ride with him, when he should require the same.
Clerk, Gibson.
Durie, p. 402.*** Auchinleck reports this case:
The Laird of Rowallan intents a declarator against the relict and bairns of Boyd, who had a tack of him all the days of his lifetime, for payment of L. 6 and his personal service upon horseback when he should be required, to hear and see them decerned to remove. The tacksman deceased about Martinmas. It was excepted by the defenders, that seeing the defunct was tacksman, his relict and bairns could not be removed without a warning. It was replied, That seeing liferenters by infeftment may be removed immediately after their decease, much more a tacksman. The Lords found the exception relevant.
