ROBERT ROSS v JAMES WEBSTER (Court of Session)

Webster, principal tenant of the spinning-mill and houses of Bal-liesden, brought an action of removing, before the Sheriff-court of Forfarshire, against Ross, his subtenant, concluding that he should be ordained to ‘flit and remove from the said spinning-mill and houses, and whole premises occupied by him under the pursuer, at the term of Martinmas 1833.’ On 29 October the Sheriff appointed defences to be lodged, and the defender to find caution for violent profits by the 4th of November.

Defences were accordingly lodged, in which, as preliminary, it was stated, 1st, that the missive of lease was not produced, as required by the Act of Sederunt, 12 November 1825; and, 2d, that the conclusion of the summons was not warranted from its narrative. The defender, at the same time, lodged a reclaiming petition against the order for caution, on the ground that the preliminary defences being instantly verified, they were sufficient to exclude the action, in which case caution was not required.

This reclaiming petition was refused by the Sheriff; and thereafter, (19 November,) the Sheriff, in respect no caution had been found, decerned in the removing, in terms of the conclusions of the libel.

On 21 November, being only two days after the above interlocutor was pronounced, the defender presented a bill of suspension, which the Lord Ordinary appointed to be answered, ‘reserving consideration of the competency of suspension before extract.’

In his answers the respondent pleaded —That the suspension was incompetent, in respect the decree sought to be suspended was not extracted, and was not extractable, the reclaiming days not having expired, and expenses not being modified and decerned for—Turner v. Gray, 9 July 1824, and Alexander v. Byrne, of same date.