A tenant disponed corns to his master, in security of arrears, with liberty to intromit brevi manu, if the money were not paid by a day fixed. The master found entitled so to intromit, without sentence of a judge declaring failure.
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James Dewar pursues the Countess of Murray, for ejecting him out of certain lands, whereof he had tack, and spuilzieing from him certain goods.—The defender alleged absolvitor; because there was a clause in the pursuer's tack, providing that if two years duty run together, the tack should expire, and in that case he renounced the tack; and thereafter the pursuer having compted with the defender's chamberlain, by writ produced he acknowledged himself debtor in such sums, and such duties for bygone years, with this provision, that if he failed in payment thereof, my Lady should, (at her own hand) intromit with the corns and others libelled, which were disponed to her for satisfaction of the rent; and likewise it should be leisum to my Lady to set the lands to any other tenant thereafter, at the term of Martinmas, and to dispose thereof at her pleasure.—The pursuer answered, non relevat, unless, by authority of a judge, the failzie had been declared.—The defender answered, maxime relevat, because declarators are only necessary in reversions, back-tacks, or infeftments, being of great importance; but not in ordinary tacks betwixt master and tenant.
The Lords found the defence relevant, founded upon the accompt and bond, in respect of the tenor thereof as aforesaid; but would not have so done upon the clause of the tack, unless it had born expressly a power to enter to the possession at any time brevi manu.
The pursuer further replied, That the defence ought to be repelled, because he offered to prove, before the ejection, he had paid a great part, and offered the rest.
The Lords having considered the instructions of offence produced, found, That it was not special, bearing any sum of money produced or offered, and that there was no consignation following thereupon; and therefore sustained the defence, notwithstanding the reply. See Removing.
