A tenant cannot be decerned to remove upon the act of sederunt, nor to find caution, unless a full year's rent be due at the date of the decree.
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A tenant being in arrear a full year's rent at Whitsunday 1763, a process was brought against him by the landlord upon the act of sederunt 1756, either to remove or to find caution for the arrears and for the rent of the five following crops. Three days after the action was called before the Sheriff, the defender paid up his whole arrears, and got a receipt for the same, which he produced in process. The Sheriff, however, judging it sufficient that the defender was a year in arrear when the process commenced, decerned in terms of the act of sederunt. But the cause being brought before the Court of Session by a bill of suspension, the Court were unanimous that in a process upon the act of sederunt, the tenant can neither be decerned to remove nor to find caution, unless a full year's rent be due at the date of the decree; and therefore appinted the bill to be passed.
