Warning, in what Cases necessary. - How to be executed.
Chalmers v. Granston
1584.
January. Case No. No 53.
A forfeited person, tho' restored, per omnia, cannot summarily turn out the parties in possession, but must use a warning in common, form.
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Mr David Chalmers having obtained the benefit of pacification, obtained letters upon the same, and charged one Cranston that was in possession by occupation of the glebe and kirk-lands appertaining to the Provostry of Crichton to restore him to the actual and real possession of the same, by virtue of the pacification. The defender obtained suspension whereof the reason was, that he could not be obliged to restore the said Mr David to possession, but to such as he had before the time of the forfeiture, which was only to the taking up mails end duties, for as to the real and actual possession the said Mr David had none, because the glebe and kirk-lands were set to umqubile Robert Ormiston and his spouse, in tack and assedation, and since syne the defender had obtained a new tack of Mr Adam Johnston, possessor of the benefice, and so was in possession cum titulo aut sallem cum tactita relocatione, and could not be removed; nor was not bound to restore the said Mr David to any real or actual possession, except he had been warned orderly, and put from his possession. To which was answered by Mr David, That Mr Adam Johnston, who was the defender's author, could not be said in any sort to stop the said Mr David from the real and actual possession of the said glebe and manse, minus the said defender, who had the right and title of the said Mr Adam nam si propter Mr Adamum Johnston talis fuit, et eo minus illum esse oportet, and also the pacification bore, in express words, that he that gets the benefit of the same shall be restored, likeas he had never been forfeited; and concluded restitutionem, et omni causa, and Mr David, if he had not been forfeited, might, in the ordinary time, have warned, and obtained decree of removing against them. The Lords, for the most part found, that the reason of the summons was relevant, and that Mr David could not be decerned to have any possession but such as he had the time of his forfeiture, and that the tenant of the ground ought to be warned before he be put from his real possession of the same.
