Scottish Court of Session Decisions

Subject_1 PART I.

REMOVING.

Macharg, Petitioner

Date: 9 March 1805
Case No. No 4.

Formal warning is not necessary from grass-inclosures let from year to year.

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James Macharg occupied two parks belonging to the estate of Ardmilland, for several years previous to Martinmas 1803, by written sets, from year to year. Of this date, (13th October 1803), he made a written offer to take the same parks for another year. The offer was accepted, and the parks specially let from Martinmas 1803 to Martinmas 1804.

The parks, at this last date, having been let to another tenant, he, on 3d December 1804, was refused peaceable possession by Macharg, who had just sold off his fat cattle, and put a lean stock on the ground, and defended his conduct, upon the plea, that he had not received any legal warning to remove, and was therefore entitled to the use of the parks for another year, by tacit relocation.

A summary application was presented to the Sheriff of Ayr, (6th December 1804), to ordain his immediate removal.

The Sheriff sustained the defences, (21st December), reserving to the petitioner to bring a proper action of removing.

A bill of advocation was presented. The Lord Ordinary refused the bill, and remitted to the Sheriff to decern in the removing.

The Court refused a petition reclaiming against this judgment, (5th March 1805); but, at the same time, reserved all questions of damage which might arise among the parties.

The fields let to Maching were entirely for pasture, and let from year to year; in which situation it is universally understood, that the doctrine of tacit relocation does not take effect, Unless the tenant makes a new bargain, he is not entitled to remain a single day after the term is expired; and if he does, he may be summarily removed, because he has now no title of possession whatever.

Lord Ordinary, Bannatyne. For Petitioner, Boswell. Agent, Geo. Tod. Clerk, Mackenzie. Fac. Coll. No. 207. p. 464.