Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN BAIRD OF NEWBYTH.

Charles Kerr
v.
John Rutherford

Date: 2 February 1667

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Charles Kerr, being infeft in the barony of Abbotrule, upon a right granted to him of the same by the Earl of Lothian, his father; pursues a removing, against John Rutherford, from that part of the said lands possessed by him.

It was alleged for the defender, That he cannot be decerned to remove; because he has an assignation from ——, rentaller of the said lands, to his rental right of the same. 2do. Because the said lands are kirk lands; and he is acknowledged kindly rentaller and tenant therein.

To which it was replied by the pursuer, That the first allegeance ought to be repelled, 1 mo. Because the rentaller had no farther right than his own lifetime; and, it being now many years since he went out of the country, and there being no word come from him since, non constat that he is living; so that the rental is expired. 2do. And if the rentaller were living as non constat, the foresaid allegeance ought to be repelled, because that rentals, of their own nature, are only in favours of persons rentalled; and are not assignable or disponable in favours of any other person; but, eo ipso, that they are assigned and disponed, they become, ipso facto, void and null. And the second allegeance ought to be repelled, because there is no need of acknowledgment of the defender to be rentaller and tenant condescended on; and, if it were, it only could be relevant as to bygones, but not as to times coming, since the interruption of the warning foresaid.

The Lords repelled the allegeances proponed for the defender, and found That a [rentaller] could not assign.

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