A tack of tenements in a burgh, whereof the entry was anterior to the tack was found not to oblige the Lessor to give the void possession to the tacksman.
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By contract betwixt Maxwell of New-wark and Mr. Zechiel Montgomery, New-wark set to Montgomery certain tenements and acres in and about Paisley, declaring his entry to have been at a term anterior to the minute, for which Montgomery was to pay a certain sum of money; and being charged, he suspends, on this reason, that the cause of payment of the sum charged for being a tack set to him by the charger, he was not liable, seeing the charger did not make void the tenement set, and enter him in possession, at least offer him the void possession. It was answered, That though it be true, that when a tenement of land is set to a tenant, to be possessed by laborage, the setter must remove the prior possessor, that the possession may be void; but that holds not in this case, where many tenements are set together, and the entry declared, to be before the contract; it, must import the meaning of parties, that the tacksman was only to have the mails and duties, and not the natural possession.
Which the Lords found relevant, and instructed by the contract produced; but declared, that if the tacksman, pursuing for the duties, or for a warning used by him in the setter’s name, he should be debarred, the charger should be obliged by his warrandice to refund his damage.
