A process of removing, at the instance of one adjudger, cannot proceed without concourse of the rest, unless the pursuer offer a more solvent tenant, or greater rent, in which case the interest of any person in re communi cannot hinder the common advantage of all concerned.
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One —— pursues removing against the tenants of —— lands, apprised by him. Compearance is made for ——, who alleged, that he had apprised the same lands since 1652, and before this apprising, and so had equal right coming in pari passu with him, and therefore he could not remove the tenants without his consent. It was replied, 1mo, That the pursuer's interest was very great, and the other parties but small, and therefore he could not hinder the removing.
The Lords found, That the removing could not proceed without consent of both parties, unless the pursuer offered a more solvent tenant, or a greater rent, in which case the interest of any other person, in re communi, could not, without fraud, hinder the common advantage of all concerned*.
Fol. Dic. v. 1. p. 154. Stair, v. 2. p. 823.
* See This case, voce Litigious, as observed by Lord Fountainhall, MS. He names the parties Forbes of Savock against James Buchan.
