Scottish Court of Session Decisions

Subject_1 REMOVING.

Robertson
v.
Spalding and Graham

1754, March 9.
Case No. No. 6.

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Robertson in 1737 lent Ashintully 2000 merks and got a tack of lands at 100 merks and a wether of rent for three years, proviso, that he retain his annualrents out of his rent, and that the tack should continue till payment of the capital, his entry to houses and grass at Whitsunday, and to arable land after separation of the crop. Thereafter Ashintully's estate was adjudged, and sequestrated by this Court. Warned Robertson and pursued a removing, the warning being in common form to remove at Whitsunday. Alleged: He cannot be removed because of the quality of his tack, and there is still a surplus rent over his annualrent payable to the creditors, and which in a certain number of years would also pay the capital. 2dly, The entry was partly at Whitsunday and partly at separation of the crop, and he was warned to remove from the whole at Whitsunday. Answered: That during the three years certain the tack was good because there was a surplus rent, but the prorogation till the capital was paid was a tack without an ish and therefore cannot bind singular successors. To the second: That the entry was plainly at Whitsunday, and it was a Whitsunday tack though he could not eat the former tenant's corns. Minto repelled both defences, and we unanimously adhered and refused a bill without answers.