Warning, in what Cases necessary. - How to be executed.
Thomas Waugh v. George Abercromby
1684.
March. Case No. No 71.
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Found, That a malt-kiln and barn being set for a year, and not for a month or quarter, the tenant could not be removed without a preceding warning 40 days before the term, more than other tenants could be removed without such due warning.
Fol. Dic. v. 2. p. 336. Harcarse, (Removing.) No 841. p. 240.*** Sir P. Home reports this case:
1684. February.—Thomas Waugh having set a tack of a malt-kiln and barn in Leith to George Abercromby, for a year from one Whitsunday to another; and the said Thomas Waugh having pursued George Abercromby to remove; alleged for the defender, That he could not be obliged to remove, because there was no warning used 40 days before the term. Answered, That the tack being only set for a year, there was no necessity of a warning, it being the custom of Leith and other places, that lofts and such other houses that are in the use to be set for months and weeks, albeit they be set for a year, yet the party may be summarily removed without a warning, as was decided in the case of the soap-house in Leith the 21st November 1671, Riddel against Charles Zinzan, No 67. p. 13828. Replied, That it is a principle in our law, and clear by the act of Parliament, that a tenant cannot be removed without warning albeit the tack was only set for a year, and the law makes no distinction whether the lands be prædia urbana or rustica, or if the tack be set for a year or more, seeing the tenants is presumed to possess per tacitam relocationem, unless he be warned to remove 40 days before the term, that he may have time to provide himself of a house or other convenience; and the case is vastly different from the taking of a loft or a house for a week or a month, for then it is tacitly implied, that the party that takes the loft or house, is no longer to continue in the possession; but, when a party takes a house from one legal term to another, be cannot be removed unless he be interpelled by a warning 40 days preceding the term, conform to the law. The Lords sustained the defence, and found the defender could not be removed before he were lawfully warned 40 days preceding the term of Whitsunday.
