Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR GEORGE AUCHINLECK OF BALMANNO.

Andrew Dalrymple
v.
The Tenants of Watterside

1633. December 13 (or 18th December 1632.)

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Mr Andrew Dalrymple, having comprised certain lands, alleged pertaining to George Douglas of Watterside, pursues the tenants for removing. It is alleged, No process for removing; because the pursuer is not infeft. To the which it was replied, That the pursuer, before warning, charged George Douglas of Watterside, father to George, from whom the lands were comprised, and superior to his son, to whom the father had given a base infeftment, to be holden of himself; and, for not infefting of the compriser, had denounced him to the horn, and thereafter had obtained himself infeft by my Lord Lowdoun, superior to the said George Elder. To the which it was duplied, That this infeftment granted by the Lord Lowdoun, can be no title to pursue for this removing, the tenants paying the ordinary mails; because the same is granted both after the warning and after the intenting of this action. To which it was triplied, That the seasine ought to be drawn back to the time of the first charge, in respect of the pursuer's diligence. The Lords sustained the triply in fortification of the libel, ad hunc effectum, to infer removing at the next term of Whitsunday, the defender paying the ordinary maills and duties of the lands; and absolved them from violent profits.

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