Scottish Court of Session Decisions

Subject_1 DEATH.
Subject_2 SECT. IV.

Where a Master or Tenant Die after Warning.

E of Haddington
v.
His Tenants

Date: 28 July 1637
Case No. No 13.

Found in conformity with Ramsay against Hume, supra.

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The E. of Haddington pursuing removing against his tenants, as heir retoured to his father, and infeft so as heir to him upen a warning, made at his father's instance, before Whitsunday last, and after which warning, and some few days after the term foresaid, the umquhile Earl, maker of this warning died; and it being alleged, That no process could be sustained at the pursuer's instance upon that warning, only executed at his umquhile father's instance, which became extinct by his decease; and this pursuer could not be heard to do any legal deed thereupon by removing, unto the time a new warning was executed lawfully at his own instance: And also alleged, That the pursuer's retour and sasine were both after the term, before which the warning was made; so that albeit the warning had been at his own instance, yet the same cannot be sustained, he neither being then, nor yet at the term, nor before it, either retoured heir or seased, far less can it be sustained to maintain the warning at his instance, which was executed by the defunct.——The Lords repelled both these allegeances, and found, That the heir might prosecute the warning, and intent action thereupon, which was used by his deceased predecessor, albeit nothing had been further prosecute thereupon by the defunct before his decease, and which the Lords found the heir might competently do, as well where the defunct dies before the term to which the warning was made, as when he dies after the term; neither was it respected, that the gross profits of the first year after the warning, might be claimed by the executors of the defunct who survived the term, and that the heir could not have right thereto: And also, the Lords repelled the other allegeance; for they found that the retour and sasine, albeit both after the term, gave the pursuer sufficient title and interest to pursue this removing, against a party who had no right to the land himself, and that the retour and sasine should be drawn back; but I find a scruple in this decision, and for the back-drawing of the retour and sasine, I conceive not how they can be drawn back to give the pursuer right to a personal act as warning, which then he could not make or do, the defunct who then had the only right being living for the time.

Act. Advocatus et Stuart. Alt. Craig et Gilmore. Clerk, Scot. Fol. Dic. v. 1. p. 210. Durie, p. 855.