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In a removing, Lady Maxwell against her tenants, the defender alleged, That he bruiked the lands libelled by tolerance, allowance, or oversight of the rentaller, who was rentalled in the lands libelled by the pursuer, during his life-time, and who was in life at the time of the warning. This exception was found relevant, albeit the pursuer replied, That bruiking, without any title, could not defend the excipients, tolerance, allowance, or oversight, not being nomina juris, which could maintain the excipients, the same being no valid right; which reply was not respected, and the said tolerance, allowance, or oversight, was found by the Lords ought to be proved, either by writ, or oath of the rentaller by whose oversight and permission he alleged that he bruiked, and found it proveable after that manner.
Act. Douglas.Clerk, Hay.
Durie, P. 385.***Spottiswood reports this case:
The old Lady Nithsdale pursued a removing against her tenants of the Mearns. Alleged, Absolvitor, because they were tenants to N. who was rentalled in these lands by the Lady, during both their life-times. Replied, Not relevant, except they did condescend how they were tenants, if by payment of mails and duties, or otherwise. Duplied, They were tenants by tolerance, or allowance and oversight. This was found relevant to defend the tenants from removing, to be proved by writ or the oath of the rentaller by whose tolerance or allowance and oversight they possessed.
1628. July 12.—In this same action, it being replied by the Lady, Not relevant to say they were tenants to a rentaller, (whose right was only personal), unless they would allege that the rentaller had power to place sub-tenants. The Lords found the allegeance relevant, notwithstanding of the reply.
Spottiswood, p. 284.***Auchinleck also reports this case:
The Lady Nithsdale pursues removing of some tenants of the Mearns. It was excepted, That they could not be decerned to remove, because they bruiked by tolerance and allowance of them that had rentals set to them by the Lady. It was replied, That the words, “brooked by the oversight and allowance of the rentallers,” were not relevant, because there were not nomina juris. The Lords found the exception relevant to be proved by writ or oath of the party, viz. the rentallers.
1628. July 15.—Rentallers may not put subtenants in possession, except they have an express right contained in the rental to make subtenants.
Auchinleck MS. p. 231. & 202.
***Durie’s report of the latter part of this case is No.94. p. 2228. voce Citation.
