A decree of removing had been obtained in abfence, without libelling on the act of sederunt, or that the tenant was in arrears. The tenant having afterward paid up all arrears, brought an action of reduction, in which he was successful.
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Mr Innes set to Clerk, for 19 years, after Whitsunday 1770, certain lands at a stipulated rent. A tack was extended, and Clerk entered into possession; but, having fallen into arrear of rent, Innes, in January 1779, raised a process before the Sheriff, concluding for the arrears of rent, the sum of which was specially mentioned in the summons, which also contained a separate conclusion for removing Clerk from the lands.
Clerk did not appear before the Sheriff. He was held as confessed upon the sum libelled, due as arrears of rent; for which a decreet was pronounced and extracted; and Innes afterwards insisted that Clerk should be ordained to find caution for the arrears, which amounted to more than one year's rent, or be decerned to remove from the lands, in terms of the act of sederunt 1756.
The Sheriff ordered Clerk to find caution between and a certain day, which being elapsed, and no caution found, he decerned in the removing, to take place at Whitsunday 1779.
After this, decreet was pronounced; but, before Whitsunday 1779, Clerk paid Up his arrears, and got a discharge; but Innes having extracted the decreet of removing, and set the lands to another tenant, ejected Clerk at Whitsunday 1779.
Clerk brought a reduction of the decreet of removing, containing a conclusion for damages, on account of being ejected; insisting, that as he possessed on a tack still current, and that the libel in the Sheriff-court concluding for removing, was laid neither upon the act of sederunt 1756, nor upon the tenant's being in arrear of rent, the action was irregular, and no decreet of removing could be pronounced upon it.
The Lord Ordinary, before whom the action of reduction came, at first assoilzied Innes, but afterwards pronounced this interlocutor: “13th January 1780. In respect that the libel of removing before the inferior Court was not laid upon the act of sederunt, nor upon the tenant's being in arrear of rent, and that the whole proceedings before the inferior Court were in absence, and that the pursuer was in possession, in virtue of a tack still current, alters the former interlocutor, reduces the decreet of removing, finds that the pursuer is entitled to enter again to the pessession, and remain therein till the expiration of the tack; and ordains parties to be ready to debate against next calling, upon the other conclusions of the libel.”
A petition for Innes, against this interlocutor, being advised, with answers, 22d December 1880, “The Lords adhered to the interlocntor of the Lord Ordinary reclaimed against, and refused the desire of the petition.”
Act. Francis Russel.Alt. Lord Maitland.Clerk, Menzies.
Fol. Dic. v. 4. p. 224. Fac. Col. No 11. p. 21.
