What precludes the right of drawing the ipsa corpora of the teind sheaves ?
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Mr. John Hay pursues Six James Douglas for contravention of law-burghs, because Sir James his son in his family hindered the pursuer's servants to draw the fourth part of the teind-sheaves of Smithfield, whereunto he hath right, and was recently in use to draw ipsa corpora. The defender alleged non relevat, unless the pursuer had been in use to draw the teind the year preceding this in question; but he set his fourth part of the teind to the tenants of the ground for a silver-duty, which hath discontinued his drawing, so he could not brevi manu thereafter come to draw, even though he had used inhibition, which albeit used in former years, might interrupt the tacit relocation of the tenant, and make him and his master liable for the fifth of the rent, yet would give him no warrant to draw the teind, and therefore the defender's son did no wrong to hinder him.
The Lords found the defence relevant, that the pursuer was recently in possession of drawing, though thereafter he had set the teind for some few years, if only he had used inhibition this very year whereupon the contravention is founded, which would have inferred spuilzie, if he had offered to draw, and was hindered, and consequently contravention; but an inhibition used in a former year, would neither infer spuilzie nor contravention, by hindering the drawing of the teind in subsequent years.
