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Mr. Roger Mowat, donatar to the escheat and life-rent of Alexander Keith, pursued one Johnston, to whom the said Alexander had set a verbal five years tack of a room, to re-enter to the said room, which he had possessed by virtue of the said verbal tack, for the space of two years, and had renounced it the third. The tack was referred to the defender’s oath. Alleged, although there had past such a promise between the defender and Alexander Keith, yet it could not bind him, unless writ had followed on it; for a tack being a real right, cannot be perfected without writ, no more than a bargain for lands; otherwise, if that were sustained for a five years tack, it might be as well for a nineteen years tack. Next, it was just that both parties should be alike bound to other, and that it should be as well in the power of the one as of the other to loose themselves of it; but so it is, that if Mr. Rodger, Who is singular successor, were pursuing a removing against the defender, this alleged verbal tack, to be proved by Alexander’s oath, would hot defend him, ergo, no more should he be forced to keep this tack to his master, than his master would be to him. The pursuer contended, that there was no necessity of writ in making of this tack, and it being proved by the defender’s own oath, was as good as if writ had intervened; as to that, that a singular successor such as the pursuer was, would not be bound to the tenant, answered, That this summons was pursued at Alexander Keith’s instance as well as Mr. Roger’s; which Alexander referred the verity of the tack set to the defender’s oath. To meet this last, the defender debarred Alexander with horning, so that he had to do only with Mr. Roger, who was a singular successor. The Lords found the allegeance relevant against Mr. Roger.
Spottiswood, p. 328.
*** Durie’s report of this case is No. 9. p. 8400. voce Locus Pœnitentiæ.
