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In a removing, the defender alleging, that he was sub-tenant to ———, who was tacksman of the lands, and whose tack, albeit it was expired the time of the warning, yet he bruiking still per tacitam relocationem, it must defend this defender his sub-tenant, ay and while the tacksman were warned; this exception was repelled, and found there was no necessity to warn the tacksman, whose right was expired before the warning, seeing tacita relocatio was found could avail to none, but to the actual possessor, and he not being naturally in possession of the land, albeit he alleges, he bruiked by his sub-tenant, whose possession he alleged to be his possession, seeing is possidet cujus nomine possidetur, which was repelled by the Lords; but the defender, who was warned, being only natural possessor, and having also paid of before duty for the lands to the pursuer, the Lords found, there was no necessity to aknowledge any tacit relocation in the person of the tacksman, whose right was expired, and he not in possession, and so that he needed not to be warned.
Act. Nicolson.Alt. Stuart.Clerk, Gibson.
Fol. Dic. v. 2. p. 338. Durie, p. 627.
