A decreet of removing sustained, tho' pronounced before the term.
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The Lady Chatto having obtained decreet of removing against Mr Thomas Halyburton, tenant in Over-Chatto, who having given in a bill of suspension, the cause was ordained to be discussed upon the bill. The suspender insisted upon this reason, that he was warned to the term of Whitsunday last; and, therefore, could neither be pursued nor decerned till the term were past; whereas, the decreet is before the term, being pronounced upon the 17th day of May last; so that the summons of removing could not be relevant, and the defender ought to have had a competent time to make his defence after the term was past. It was answered, That the summons was just and relevantly libelled, for as a summons of removing may be, that he was warned, and the term to which he was warned was past, and, therefore, craving him to be decerned instantly to remove; it might also be relevantly libelled, that he was warned; and, therefore, ought to be decerned to remove at the term, which is both just and fit; for, otherwise, lands cannot be securely set, that both the master and the new tenant may be certain, by clearing all the pretences of the warned tenant, that, upon the decreet, he may be by letters and precepts of possession dispossessed, and the new tenant entered: Therefore, the Lords sustained a decreet of the same nature, in the case of Riddel against Zinzan in Leith, November 21st, 1671, voce Removing.
The Lords sustained the decreet of removing.
Fol. Dic. v. 1. p. 538. Stair, v. 2. p. 875.*** Fountainhall reports this case.
The Lady Chatto having obtained a decreet of removing against a tenant, and a bill of suspension being presented of it, upon these reasons, 1mo, The citation before the Sheriff was only upon 24 hours; this was repelled, in regard there was no reduction; 2do, That both the summons and decreet of removing were before the term of Whitsunday; whereas, the constant stile and form of removings is, that the 40 days being expired, and the term past, yet he refuses to remove. “The Lords found this no nullity, it being only declaratoria juris, and for expediting removings; and that it could not be put in execution till after the term.” Yet some thought, tenants were favourable in law, (as appears by many of our acts of Parliament,) and were not so strictly to be used; and that the anticipation was contrary to the analogy of law which is to be observed: Yet Stair in his Institutions, Tit. 19. approves of this decision.
