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The Lord Duffus having obtained a decreet of removing against Dumbar, his tenant, and having executed the same by letters of possession, the tenants raise suspension and reduction of the decreet, and a summons of ejection. The reason of reduction was, that the Sheriff had done wrong in repelling, and not expressing in the decreet a relevant defence; 2do, That the tenant could not be decerned to remove, because he was already removed irregularly by ejection, and ought not to be put to defend in the removing, till he were re-possessed: spoliatus ante omnia est restituendus; which he instructed by an instrument taken in the hand of the clerk of Court. And where it was replied before the Sheriff, That he had not found caution for the violent profits, he answered, That he needed not, seeing the pursuer himself was in possession by the ejection. It was answered, That the Lord Duffus offered him to prove, that all he did was to put in some corns and plenishing in an out-house, long after the warning of the tenant that had taken the roum; and that he continued to possess all the rest of the house, and the whole land by his cattle, till he was legally removed; and neither the family nor the goods of the new tenant came in till then. It was answered, That the allegeance was contrary to the tenant's libel of ejection, bearing, that he was dispossessed both from the house and lands.
“The Lords considering that the tenant's was only positive, in ejection from the house, and had once acknowledged that he was hot ejected from the land, they assoilzied from the reduction of the decreet of removing; but they sustained the action of ejection, and repelled the defences, as contrary to the libel, reserving to themselves the modification of the violent profits, and the other party to debate whether, after the decreet of removing, the tenant should have re-possession, or only the profits or damages.
Stair., v. 1. p. 377.*** Newbyth reports this case:
The Lord Duffus having obtained a decreet of removing against William Dunbar, before the Sheriff of Murray and his depute, the decreet was suspended upon this reason, That William Baillie, now tenant to the Lord Duffus, and others in his name, having intruded himself in possession at least before by the decreet of removing he was removed, and that he had an action against the Lord Duffus for the same; for which it was answered, That he opponed his decreet and warning, and albeit he was removed, as he was not, before the decreet, yet the same behoved to be extracted for securing the intrant tenants
The Lords found the letters orderly proceeded in the removing, reserving the defender's action of ejection; and the ejection being likewise called the Lords repelled the allegeance proponed for the Lord Duffus, in respect of the libel and reply, and assigned a term to prove; but, in regard the tenant was possessed, the Lords inclined not to re-possess him, albeit he should prove the ejection, but would turn the same in damage and interest.
