A warning against a father who thereafter died, susstained as a ground of removing against the son, who was called in the removing, without necessity of using a new warning against the son.
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Anent the action pursued be Richard Cranston, fiar of the lands of Marveston, against James Brown, son and appearand heir of George Brown of Coalston, and other possessors of the said lands, it was alleged be the said pursuer, that the said defenders should remove frae the said lands, as they were lawfully warned therefrae, conform to the act of Parliament. It was alleged be the said possessors, That they sould not remove, notwithstanding the said warning, because the said James Brown was principal tenant to the said setter of the feu to the said pursuer, and they but sub-tenants to the said James, who deceased before the calling of the said matter, and sua the said sub-tenants should not be decerned to remove frae the said lands, while the said James's aires were called. It was answered be the pursuer, That the allegeance of the defender was not relevant, except they wald allege, that the said James had tacks or some other right of the said lands for terms to rin, and in possession thereof, be paying of mails and duties to the setter thereof to the said pursuer, before the setting of the same in feu, immediately before the said warning; and because the said defender would not qualify that exception, as is above written, therefore the Lords repelled the same, and thought it was not necessary to summon the said James, and for the cause foresaid.
Fol. Dic. v. 1. p. 210.* Maitland, MS. p. 183.
* This case is called by mistake in the Fol. Dic. Home against Kennedy.
