Warning, in what Cases necessary. - How to be executed.
The Lady Kincaid v. -
Date: 12 Jaunary 1622 Case No. No 59.
A liferenter after the decease of a former lifereater, has the same privilege with a fiar of summary removing.
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The Lady Kincaid, liferenter of the lands of ———, in which lands she was infeft by her umquhile husband, and from the possession whereof she was debarred by the liferent right, standing in the person of ———, her mother-in-law, who bruiked the same by her liferent thereof, so long as she lived after the decease of the said mother-in-law, she charges by a summons two persons who had entered to the possession of the houses and lands liferented, as said is, immediately after the said old Lady liferenter's decease, to compear to hear them decerned to remove. This summons is raised summarily upon these foresaid grounds and narrative, without any warning or precept of removing, as is ordinary in other actions of removing; against which, it was alleged by the defenders, That that order could not be sustained so summarily upon a charge and a summons, without a preceding warning made before the ordinary term of Whitsunday; seeing actions, which had the like summary proceeding, were only where fiars enter to the possession of lands, after the liferenter's decease, when the fee is affected with that liferent, and cannot be drawn to the case of this pursuer's right. The Lords repelled the allegeance, and sustained the warning; and found, that one liferenter, after the decease of another anterior liferenter, had the same privilege which a fiar would have had.
Act. Hamilton.Alt. M'Gill.Clerk, Scot.
Fol. Dic. v. 2. p. 335. Durie, p. 9.
