Scottish Court of Session Decisions

In 1825, M'Neil granted a bond and disposition in security over certain subjects in Paisley, for a sum of £900, to the author of Walter and John Blair, who took infeftment in the subjects. The disposition contained the usual clauses, and, inter alia, an assignation to the rents and duties. The creditor granted a letter, obliging himself not to call up the loan for ten years. He died, and his trust-disponees and representatives, Walter and John Blair, having been infeft, raised a process before the Magistrates of Paisley for removing Mitchell from a part of the subjects which was occupied by himself. They were previously in possession of the rest of the property, and drawing the rents. The summons was called in Court more than 40 days before Whitsunday, 1834. It libelled, “that no part of the said principal sum in said bond and disposition in security has been paid, and there is also due to the pursuers at Martinmas last, 1833, the sum of £20 and upwards, being arrears of interest on the said principal sum; that the said defender, Lachlan M'Neil is tenant and possessor of part of said premises; that £8 sterling per annum is a fair rent for the premises which he so occupies, payable by equal proportions at Martinmas and Whitsunday; that though the pursuers have frequently required the said defender to pay the rent for the current year, from Whitsunday, 1833, till Whitsunday, 1834, of said premises occupied by him, at the rate of £8 sterling, and also to remove and flit therefrom at the term of Whitsunday next, yet he refuses either to pay said rent or to remove from said premises,’ &c. They therefore concluded, that M'Neil should be decerned “to flit and remove himself, his family, servants, subtenants, cottars, and dependents, cattle, goods, and gear, furth and from the said premises in said subjects occupied by him as aforesaid, and that at and against the term of Whitsunday, 1834, and to leave the same void and redd, to the end that the pursuers, or others in their names, may enter thereto, and peaceably possess and enjoy the same, during the non-redemption of said subjects.”

The defender objected to the competency of the proceeding, but the Magistrates, “before farther procedure, ordained the defender to find caution for violent profits.” Caution not being found, they “circumduced the term against the defender for failing to find caution, decerned the removing as libelled, to take effect within the days of the charge, the term of Whitsunday being now passed; and found the defender liable in the expenses of process, and dues of extract.”

1. He presented a bill of suspension, without caution, and pleaded, that the remedy of a heritable creditor, if arrears of interest were due, was either to enter into possession, by a process of maills and duties, or to pursue a poinding of the ground; ¹ but that a removing of the proprietor, feudally infeft, as if he were a quasi tenant, was a novel and incompetent proceeding; and, 2. That the order to find caution for violent