Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Mr Alexander Lisk
v.
Gilbert Rob

Date: 7 July 1674

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In a pursuit, for damage and interest, at the instance of Mr Alexander Lisk, upon this ground, That he had set his lands to Gilbert Rob, and he was obliged to enter and possess the same at Whitsunday; and that, after the flitting Friday, he had required him to enter to the possession, and taken instruments upon his refusal:—

It was alleged, That the defender, not being required until five days after the term, and the houses and lands not being made void and red, by the removal of the present tenant, the defender was not obliged to remove from his old room his whole family and goods, having no place to which he might enter.

It was replied, That the defender, being required, was obliged to come to the new room with his family and goods, and then have required the heritor or his tenants, that he might have present possession; otherwise the heritor was not obliged to remove the present tenant, and make his room void: which not being done, the defender is liable for damage and interest.

The Lords did look upon this as a general case; and, after much reasoning amongst themselves, did at last find the defender liable in damage, unless he would offer to prove that he had required the pursuer, after the ordinary day of flitting, to enter him to the possession; or otherwise, that he offered to prove that the heritor had set a new tack: Notwithstanding it was urged, that the removing of a present tenant is necessary in order to the entering of a new; and that the master, being obliged in law to enter the tacksman, he ought to make the room void, and put him in a condition that he might enter. This was hard.

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