his system of Forms, I shall take it from Spottiswood, p. 65-the style being every. where the same *. A. heritable proprietor of the lands and others after described. To The precepts of warning were always directed, and are yet directed, to the lowest officer of the barony or other jurisdiction: and it might have been directed to any persons; Quidlibet enim (says Craig) ad id munus sufficit.' " It is my will, and I require you.' Here is the great style.-The King can only say, 'Our will is, and We command you.'-It is these words that give the title to the writ. A procurator, you may remember, is a representative of his constituent :-he is made and constituted :-he acts in his name; it supposes ability for that purpose: and, though the Act of resignation of lands be ministerial, yet it would have been an insult, had the vassal appointed a mean person to perform an act of reverence to his Superior. In giving sasine, the proprietor rises in importance, and appears as a Superior himself. He gives, therefore, a precept, and commands his Bailie to execute the business. Ye pass, forty days preceding the term of Whitsunday.' One of the first questions moved upon the Statute 1555, regarded the forty days, i.e. whether they were free or not; and it was found that the warning is not lawful, unless there be forty free days betwixt the term of warning and the term of Whitsunday, excluding not only the day of warning, but also the term of Whitsunday itself. 19th May 1565, Lord Borthwick †. In February 1715, the Lords dispensed with this rule, and decerned in a Removing, altho' the 40 days were not free-a decision which it is presumed will not be repeated ‡. In cases where more than one term of entry is mentioned in the lease, such as Can *Precept of Warning. A. Heritable proprietor of the lands and others ' under written, to executors hereof, conjunctly and severally, greeting. It is my will, and I desire you, that incontinent this my precept seen, ye pass, forty days preceding the term of Whitsunday next to come, and lawfully warn, conform to the Act of Parliament made concerning warning of tenants to remove from lands, the persons after named, pretended tenants, and others ⚫ under written, viz. (Here insert the names of the tenants, and of the lands, as in the tacks, or in the 'heretors rights) to flitt and remove themselves, their wives, bairns, families, servants, subtenants, cottars, goods and gear, forth and from the said lands and others above written, with the pertinents; and to desist and cease from them, and ⚫ leave the same void and redd at the said term of Whitsunday next to come; each of the said persons for their own parts, so far as they occupy thereof; to the effect that I, my tenants, servants, and others in my name, may enter thereto, peaceably and dispose thereupon as my heritage, at my ples sure, in time coming, conform to my infettment, and sasine thereof; and that ye use the whole remanent order of warning against the fore-named persons, for removing from and others ' above specified, prescribed by the Acts of Parlia ment made thereanent: Certifying them, if they do in the contrary, and continue to occupy, labour and possess the lands and others foresaid, after the 'said term of Whitsunday next to come, they shall be holden and reputed violent possessors thereof, and 'compelled to make payment of the violent profits of the same, with all rigour.-According to justice, shall answer to me thereupon. The which to do, I commit to you conjunctly and severally my officers in that part, full power by this my pre cept (written by —) and subscribed by me, at as ye + Balfour, p. 457. Duchess of Buccleugh against Davidson. dlemas for the grass, and Whitsunday for the houses, the precept must be executed 40 days before the Whitsunday preceding the first term so specified. Feb. 14. 1765. M'Naughton contra Wilson. Tenants happening to be out of the kingdom, an objection was made, that 40 days warning were not in that case sufficient an erroneous idea, arising from the analogy of a summons. A warning is now nothing more than a notice or intimation requisite to found a summons. A private person has no power to give notice at the marketcross, pier and shore; and the Act 1555 gives him no such authority: But the summons of removing consequent upon the warning, must be upon the long inducia. The warning was, notwithstanding, sustained with some difficulty, needless doubts having been entertained by some of the Judges about it. It may be upon 60 days, in place 40, for that can do no hurt.-Warnings have been objected to, and sustained without proclamation at the market-cross, pier and shore. 18th January 1612. Archbishop of St. Andrew's against Lord Roxburgh. of To make sure work, however; upon such occasions, practitioners applied the ordinary remedy, of Letters in supplement of the warning. These letters you will find in St Martin. After reciting that the heritor had subscribed a warning, they proceed thus: And in respect A. B. and C. D. two of the tenants, are presently furth of the kingdom, and so cannot be warned in virtue of the said precept: Therefore com'mand, that ye pass, 60 days before the term of Whitsunday next, to market-cross, pier and shore, and, in supplement of the said precept, lawfully warn and charge you, &c.' According to these forms, it is impossible to remove a tenant for that year, unless both warning and removing are executed, and the action proceeded in, several months before the term of removing. ⚫ Conform to the Act of Parliament made concerning warning of tenants to remove 'from lands." This clause became necessary after the Act 1555, the heritor having no title to warn in any other manner. • Pretended tenants and possessors.' The word pretended, is alwise used by Formalists, in writs calculated to quarrel or set aside the rights of others. In some of them, it is proper, because their titles are impunged as void from the beginning. In the precept of warning, it is improper; because there could be no use for the writ, unless the parties warned were truly in possession, or tenants at the time. It should be, Present tenants and possessors.' To flit and remove themselves, their wives, bairns, servants, families, subtenants, cottars, goods and gear.' In this enumeration, the cattle, &c. are omitted, unless we suppose them comprehended under goods and gear.' The words bairns and gear, though now almost forgotten among the English, are original Saxon words, and used by the best Old Writers, as peculiar to rural affairs. Thus Milton SUBTENANTS.-The Tenant is warned to remove the subtenants, because their right depends upon his; and, as Craig says, they ought to know that it is their duty to remove along with him, tho' they should not be mentioned in the warning.-But the reverse will not hold. The warning of the subtenant will not remove the principal, even tho' the former should be in the natural possession.-The reason is given by the same Author: It would be unjust that those who had no right or possession from the ⚫ pursuer, should be obliged to remove at his instance, if the persons from whom they derived right, and whose proper tenants they are, had not been warned, and an op'portunity given them of defending their own possession.-For this reason (continues he) most people are careful, not only to warn the natural possessors, but also all ⚫ others from whom any of them derived right to the possession.-The Lords vary in their decisions upon the necessity of this; but, in my opinion, it is clear, that no ⚫ subtenants can be removed, without warning the principals, from whom possession has been derived.' Cottars are still more dependent upon the Principal Tenants, and considered as a part of their families. I formerly explained to you the word Cottar *, and gave you an account of that class of people. From the said lands, with the pertinents; and to desist and cease therefrom.'-To leave and depart from the same, would be better words; yet the former, being the words of the Act 1555, must be retained.-By pertinents, our Judges seem to have understood byres, barns, stables, and out-houses. When tenants remove at Martinmas or Candlemas, their out-houses, as already mentioned, are often allowed to remain in their possession, for the preservation of their corn and cattle, till the entry of the new possessor. Leave the same void and redd.'-These words carried an important signification. Parties disputing the property, often bribed the outgoing tenants to admit them quietly into possession. This (says Craig) is not to be born: the tenant cannot be suf fered, thus, by fraud or collusion, to invert the possession of his Master.' An attempt of the kind was tried so late as the 1713: but the Lords found, That the decreet was not fulfilled by the tenant's removal, when, by collusion with him, another steps into the possession; but he must deliver, or leave it void and redd. 21st July 1713, Budge contra Sinclair. 6 That I, my servants, &c. may peaceably bruik, joyce, and dispose thereupon.'Bruik is a Saxon word for using, bearing, or enjoying. Joyce is from the French word jouir, to enjoy. Both are now almost obsolete even with us. Conform to my infeftment and sasine.'-This is improperly expressed: it should be conform to my charter and sasine, or conform to my infeftments, which include both, for the sasine is only part of the infeftment. A purchaser must therefore be infeft, before he can remove tenants; for they are not bound to take notice of any personal rights and the sasine, at least, must be produced as the title in the action of removing. Tho' it is held, that, in a question with tenants who have no real right to oppose, a sasine is sufficient, yet the charter, to avoid objection, should always accom pany it. Mr Erskine seems to be of opinion, that a bare disposition ought to be held as a good title in removing tenants who have no better right to produce. A disposition (says he†, p. 274.) would not entitle the heretor to remove the tenants by * Frequent reference is made to Lectures intended to be delivered. + Lord Bankton and Mr Erskine imagined, that Barons and other Land-holders possessing territorial jurisdiction, might have removed tenants by the decree of their own Court; because the Act 1555, be sides เ ' decree of his own Court; but, by Common Law, he seems to be entitled to bring it before the Sheriff, in consequence of his property, especially as the disposition car. ries a right to the mails and duties, or, in other words, to the rent.' Common Law is a word very common in our books, but it is often difficult to know what the writer means by it.-Anterior to the Statute 1555, there was no such rule acknowledged, or practice known. That Act supposes a compleat right in the person of the heretor, who takes the benefit of it; and it obliges him to use real execution, by leaving a copy upon the lands for all third parties having or pretending any real right. Now, how could this be done by the holder of a bare disposition? How could he do any acts, quæ prædia tangunt, as the Lawyers express it, without a right in the lands themselves? A second disposition, with a prior infeftment, might cut him out of his claim to the property forever. A personal disposition carries mails and duties, not in consequence of any right established in the person of the disponee, but as an exertion of the right remaining in the granter, who may assign his rents as he pleases, without disponing his lands.-I have remarked upon the style of the precept, that it is an Act of jurisdiction; and the holders of personal rights, it is admitted, have no title to the exercise of any thing of that nature. Hence it is, that an heretor must be infeft at the time he uses his warning, otherways it is null, as issued a non habente potestatem. The only exceptions to this rule, are where the heretor derives right by terce, if a widower; and by courtesy, if he be the husband of an heiress. The reason is plain: Such proprietors rest upon the sasine of the heiress or the husband, and need no second investiture to compleat their right.-The next is the case of an apparent heir using the warning upon apparency, and compleating his infeftment before the removing. Apparency is, in law, held to be a title of possesion in many cases; and, amongst others, it is held sufficient to support a warning, if infeftment follows; because the posterior titles have a retrospect to those of the ancestors, join with them, and form a legal continuity: they make the heir, in the law phrase, una et eadem persona cum defuncto.-This point was determined in the time of Craig. • Our manners (says that Author) differ much from those of our ancestors. They positively required, that, both at the date of the warning and removing, the warner should be the ' verus dominus.' 6 Where the tenants derive their right from the user of the warning; it is consonant both to law and common sense, that they should not be allowed to inquire into, or to quarrel that right. Their own possession depends upon it; and, therefore, they must obey the order of their Master. Non enim ferendus est colonus (says Craig) qui cum eo, a quo causam possessionis habet, de jure ejusdem possessionis velit conten' dere; sed ut ab eo possessionem acceperat, et ei restituere cogendus est.' Infeftments upon precepts of clare constat, are common titles in removings, though their sufficiency is much doubted by Stair, and the doubt repeated by Mr Erskine. The reason assigned is, That unless the immediate ancestor of the person infeft had been in possession, his title imports nothing more than the assertion of a superior. sides the Lords of Session, and Sheriffs, Magistrates, and other Judges Ordinar having jurisdiction. The very purpose of the Act, was to take the execution of this business out of the hands of the Master, and to place it in that of other Judges. The warner is ordered to come to these Judges, showing his precept of warning orderly executed and indorsed, ' and to take letters from them.'-A vassal, therefore, of a Baron, might, under this salvo, apply to him; but, if the Baron was the warner, it is plain, from the words and purview of the Act, that he could not apply to himself. Had the Statute allowed this, it would have effected nothing. And that ye use the whole remanent order, &c. &c.' This general direction relative to the Statute 1555, is preferable to the other form of making it special, and repeating the direction of the Act.-The shorter the writ is, the less handle it affords of committing error.-The heretor ordains every thing to be done according to law, and gives ground for a presumption that it was accordingly done, when the contrary does not appear from the execution. ⚫ Certifying them that they are to be held as violent possessors.'-This does not appear to be precisely authorised by the Act. The certification of the Act is, That they shall be decerned to remove by order of the Judges Ordinary. And letters direct sim• pliciter upon them in the said matter,' i. e. That letters of ejection should immediately be issued against them.-This is also the certification even of the summons. According to Justice, &c.'-This conclusion is copied from the King's letters: it is the language of authority, which all landholders in this country conceived themselves to be possessed of. The precept being then a kind of judicial writ, does not fall under the Stamp Act. It must, however, be subscribed before witnesses, with all the formalities of private deeds. In executing this warrant, the officer may either begin with the ceremony at the church, or he may serve it upon the tenant. He ought to read the precept, and then deliver him a kind of schedule, with us termed a short copy. Officer in that part specially constitute, by the Precept of Warning after mentioned, directed to me by A. heritable proprietor of the lands of conform to the said Principal Precept signed by him of date the 27th March 1764 years, do hereby, and by virtue hereof, warn you to flit and remove yourself, wife, bairns, family, servants, subtenants, cottars, goods and gear, furth and from (here the lands are inserted as in the precept) and to leave the same void and redd at the term ⚫ of Whitsunday next to come; to the effect that the said A. as heretor thereof, his ⚫ tenants, servants, and others in his name, may enter peaceably thereto at the said term; with certification in manner mentioned in the said principal precept of warning. This I give you upon the 28th day of March 1782 years, before these wit'nesses.' -- After having left another upon the lands, and gone through the solemnities prescribed at the church, he returns an execution, which we will next consider day of 1764, I Officer in • Upon the that part specially constitute, by virtue of the within-written Precept of Warning, passed to the dwelling-house of the within-designed F. present tenant and possessor of the lands of and also to the ground of the said lands, and lawfully warned, ⚫ conform to the Act of Parliament made anent warning of tenants to remove from • lands in all points, the said F. to flit and remove himself, his wife, bairns, family, servants, subtenants, cottars, corns, cattle, goods and gear, furth and from the said lands, with the pertinents and houses, and yards and others thereto belonging; and to leave the same void and redd at the term of Whitsunday next to come, to the • effect the within-designed A. and his tenants, and others in their names, may enter thereto, and peaceably possess, bruik, occupy, and labour the same at their pleasure: -And also, upon the day of and at the most patent door thereof, at the and year foresaid, being Sunday, within which parish the said lands lie; dismissing of the congregation from the forenoon's sermon, after crying of three several oyesses, I read and made public inti |