Scottish Court of Session Decisions

Subject_1 STEILBOW.

Viscount of Belhaven
v.
Lady Luss

Date: 18 July 1637
Case No. No. 4.

Where the tenant had no tack, he was ordained to deliver the steilbow to the donatar betwixt and Whitsunday, although he had received no warning to remove.

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The Viscount of Belhaven being donatar to the Laird of Luss' escheat, and obtaining declarator thereupon, pursues a special declarator against the Lady Luss, and certain others, wherein a tenant being called for delivery of certain steilbow goods, which were delivered to him by the Laird of Luss, the time when the room was set to him in steilbow, with the said goods; and the defender alleging, that he could not be subject to deliver the same to the donatar, he being tenant of the room, so set in steilbow; for he could not deliver the goods, and be compelled to keep the room, and to pay the yearly duty therefore, wanting the steilbow, which he obliged him to pay for the same, together with the steilbow; the Lords found, that the defender ought to be compelled, by this process, to deliver the steilbow goods to the donatar, betwixt and the term of Whitsunday next to come, 1638, betwixt and which term he might provide himself of another room, and give over this room to the setter thereof to him, or to any other having right to the same, and that in the mean time he might make use of his corns and provide for the delivery of the steilbow goods: And it was not respected, that the defender alleged, that he being tenant closed within terms, as the heritor could not remove him before he were lawfully warned, as use is, no more could he pursue for the delivery of the steilbow goods, before he were warned, seeing he could not deliver the goods, which were the means by the which he laboured, and which are pars fundi, so conditioned to him, and consequently the donatar, who could not be in a better case than the master, who set the room, could not pursue for the goods, except he, had been first warned to remove; which allegeance was repelled, for the Lords found, that the defender ought to deliver the steilbow goods to the donatar, as having right thereto, at the next Whitsunday, after the separation of the crop, and that it was in the tenant's will still to retain the possession of the room, or to leave the same, if he liked, after that ensuing Whitsunday, and ay and while he were warned by one having right to the land, which a naked donatar to the simple escheat could not do, albeit that donatar would also have had right to the steilbow goods: And this was found, in respect that the defender was but a naked tenant without tack, whereas, if he had obtained tack of this room in writ, with the steilbow, the donatar eo casu could not have pursued for delivery of the goods, while the tack was expired, albeit he might have sought declaratoriam juris thereupon, before the expiring of the tack.

Actor, Advocatus et Nicolson. Alter, Mouat, Clerk, Gibson. Fol. Dic. v. 2. p. 393. Durie, p. 853.