Where a house and enclosure were let as one subject,. and for a rent in cumulo, but the entry to the field at Candlemas, to the house at Whitsundsy, it was found, that the tenant must be warnted to remove 40 days before the Whit-sunday preceding the candlemas.
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By tack, dated 15th May 1760, Wilson let to M'Naughton, at L. 14. of rent a house and park,, for three years from his entry; which was declared, “as to the grass park, to have been and begun at the term of Candlemas last; and to he dwelling-house, factory, office-houses, and other pertinents, at the term of Whitsunday now instant.”
After the years of the tack, M'Naughton possessed a fourth year by tacit relocation. Wilson having brought an action of removing before the Judge-ordinary, in terms of the act of sederunt 14th December 1756, § 2. he obtained a decree in absence, 21st December 1763, and ejected M'Naughton 21st May 1764.
M'Naughton brought a reduction of this decree, and contended, That, as both the commencement and termination of his tack, as to the park, was at Candlemas, the action ought to have been brought 40 days before the Whitsunday preceding, viz. 1763.
Answered for Wilson; By the first clause of the act of sederunt, a tenant who has obliged himself to remove without a warning, may be charged with horning “40 days preceding the term of Whitsunday in the year in which the tack is to determine.” The second clause declares, that an action of removing before the Judge-ordinary being called, “at least 40 days before the term of Whitsunday, shall be held as equal to a warning executed in terms of the act 1555.” The term of Whitsunday, in the last clause, must be the same with that described so particularly in the first, viz. the Whitsunday “in the year in which the tack is to determine.” If so, it was sufficient, in the present case, to have brought the action 40 days before Whitsunday 1764, being that in which the tack was to determine; whereas it was brought full five months before that term. 2dly, The removing is allowed to have been regular as to the houses. These, which were fitted up for an inn, were the principal subject in the lease. The park, which contains only four acres of ground, and part of it of very little value, could not be rated at above a third of the total rent. It could therefore be considered as an accessory only to the houses; and as M'Naughton has been regularly removed from these, he will not be allowed to keep possession of the park, which, as an accessory, must go along with its principal.
Replied for M'Naughton, to the first; The act 1555 required a warning 40 days before Whitsunday, i. e. 40 days before the Whitsunday preceding the term of removal, if that term be not Whitsunday, according to the opinion of Lord Stair, Inst. B. 4. T. 24; M'Kenzie's Observ. upon the act 1555; and Lord Bankton, vol. 2. p. 109. 111. The act of sederunt 1756, did not alter these regulations, so far as they regard the present question. It only introduced a removing without a warning, but left that removing subject to the same rules with the warning. To the second, The park, when properly managed, yields 40 bolls of grain; and therefore cannot, with any propriety, be considered as an accessory in a subject whereof the whole rent is but L. 14. The same plea was urged, but rejected, in a case precisely similar, 19th February 1740, Hay against Carse, No. 80. p. 13837.
Nota; There was no proof with regard to the value of the park.
The Lords found, “That, as by the tack, M'Naughton's entry to the possession of the park is declared to be at the term of Candlemas, and his entry to the house at the Whitsunday following, the process for removing him from the park at the term of Candlemas 1764, and at the term of Whitsunday, that year, from the houses, ought to have been brought 40 days preceding Whitsunday 1763; and, as it was not brought till the 21st Decemher 1763, found the removing could not proceed.”
Reporter, Auchinleck.Act. J. Dalrymple.Alt. James Ferguson, tertius.Clerk, Kirkpatrick.
Fol. Dic. v. 4. p. 223. Fac. Col. No 8. p. 14.
