Found that where a tenant over-gave his house within a burgh of barony, forty days preceding Whitsunday, this was sufficient, although the universal custom of the burgh was to give houses up upon the first Monday of the year.
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Mr.Grosset having possessed a house in Alloa for some years, intimated to Mr Nicol the proprietor, above 40 days preceding Whitsunday 1733, that he intended to remove at that term; which accordingly he did; but, the house having stood waste for the year after his removal, Nicol brought a process against him before the Sheriff of Clackmannan for payment of the year's rent, upon this ground, That through Grosset's default to overgive his possession upon the first Monday in the year, conform to the immemorial custom of the inhabitants in the burgh, he had lost the opportunity of setting his house to another tenant. And, upon Nicol's proving the custom, he obtained a decreet; which Grosset suspended, on this reason, that by the act 39th Parliament 6th, Queen Mary, which behooved to be the rule in this case, he was not bound to renounce his possession sooner than 40, days before Whitsunday.
Answered for the charger, 1mo, The act speaks not one word how tenants should give over their possessions; 2do, It ascertains the order of warning of tenants as to prædia rustica; but, as to the prædia urbana, that matter is left to be regulated by the custom of the several burghs, which, although different among themselves, there is still a custom in each, which is the rule for that burgh. And this is obvious from the following words of the act, directing, ‘That tenants should be warned to remove from their lands, mills, fishings, and possessions, 40 days before Whitsunday, personally, or at their dwelling-places, and at the ground of the lands;’ words which would have been very improper, if tenements within burghs were designed to be comprehended; as there is usually no other ground belonging to them but what is occupied by the houses. And Stair, B. 2. T.9. §. 40, says, ‘The statute reaches not warnings from tenements within burgh, which are regulated by the custom of the burgh.’ And in support thereof, he refers to two decisions, 18th July 1634, Hart, No 138. p. 3783.; 21st November 1671, Riddel, No 67. p. 13828.
Replied for the suspender; to the first, The words of the law are general, That Warnings of all tenants and others shall be by lawful warning, made 40 day before Whitsunday;' and if so, the master was not bound to warn the tenant till 40 days before Whitsunday; of consequence the tenant was not obliged to renounce his possession sooner.
To the second, It is a mistake to say the act does not extend to tenements within burgh; seeing, as the words are general, these must always be the rule, except where it is derogated from by a posterior universal custom, which can take its rise only from the reason of the law ceasing in certain circumstances; e.g. The act requires publication at the parish church, which is not introduced to much in favour of the tenant, who may be sufficiently certiorated by the copy left at his house, and upon the ground of the lands, as in favour of sub-tenants and cottars, who are thus warned edictally, because the other may not reach them; and which therefore is plainly not necessary within burgh, as was found in the decision first referred to. But in other points the statute is in observance within burghs; thus an execution, by chalking the door of a house within burgh, is, in effect, a copy left at the dwelling-house, and also upon the ground of the lands; for they are one and the same thing; which is the meaning of the passage quoted from Lord Stair; not that the statute does not concern burgage tenements, but only that it does not extend to them in all its branches.
As to the decision in the case of Riddel, it is not only single, but very singular; for, if the act has made a warning 40 days before Whitsunday necessary, only because it was the usual term of entry, then warning 40 days before Martinmas would be sufficient in corn-roums, and 40 days before St Andrew's day for fishings, these being the known terms of entry in such cases; but, the law being general, a warning before Whitsunday is necessary, whatever be the term of entry.
The Lords sustained the reason of suspension. See No 107.
