Effect of an obligation to remove without warning.
Dewar v. the Countess of Murray
Date: 18 December 1661 Case No. No 121.
During the currency of atlease, the tenant became bound to pay his arrears at a term certain, and in case of failure to re move summarily. The master found entitled to eject him brevi manu.
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In an action of ejection and spuilzie, pursued by James Dewar against the Countess of Murray, for alleged ejecting of him furth of the lands of Barnhill, and spuilzieing of his goods furth thereof, it was alleged, That the pursuer being tenant and tacksman to the defender, and resting to her certain considerable duties, he gave bond to her for payment of the said duties betwixt and a term, containing a declaration, That if she should not be paid, it should be lawful for her, at Martinmas after the failzie, to use and dispose upon the room at her pleasure; and per verba de præsenti, he did renounce the tack in case of not payment. Likeas, he having failzied, she did accordingly at Martinmas set the lands to another tenant, which this pursuer has in effect homolegated, by accepting a sub-tack of a part from the tacksman. And as to the goods, she intromitted with them by virtue of a disposition thereof, granted by him to her, for security of the said by-run duties. It was answered, There was no declarator of the failzie, and she could not enter brevi manu without a sentence; and that before Martinmas the pursuer did ofter the by-run duties to the defender's factor; and when he took the sub-tack, he protested it was but prejudice of his action against the defender. It was replied, That the defender needed not to have declarator, the pursuer having per expressum declared, that it should be lawful to the defender, in case of not payment at Martinmas precisely, to use and dispone upon the room; which, if she had not done, it behoved to have lain waste, he having no goods but such as were disponed to the defender: That the offer was long after the term of payment, and did bear no real numeration of money, more or less, but only, that he offered the by-run mails and farms: That there was no consignation used upon the offer, and that the protestation was contraria facto, seeing the acceptation of the sub-tack was a clear acknowledgment of the right in the principal tacksman's person.
The Lords found the allegeance relevant.
Fol. Dic. v. 2. p. 338. Gilmour, No 11. p. 9.
*** Stair's report of this case is No 6. p. 1816. voce Brevi Manu.
