Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

The Laird of Drumlanrig
v.
Scot of Burnfoot

Date: 5 July 1625

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The Laird of Drumlanrig, as heir to his umquhile father, and heritor, and infeft as heir to his father, in certain lands, pursues an action of succeeding in the vice, and for removing, and for violent profits against Scot of Burnfoot, as succeeding in the vice of umquhile Scot of Burnfoot his father, against whom umquhile the Laird of Drumlanrig, father to the pursuer, and to whom he is heir, obtained decreet of removing. The defender compearing, alleged this process ought not to be sustained at the pursuer's instance, as heir, against this defender, to produce removing against him, as succeeding in the vice of the defender's umquhile father, who was decerned to remove, by virtue of an old decreet obtained at the pursuer's father's instance, except that sentence of removing had been transferred in the person of the pursuer, and also in the person of the defender. Which allegeance the Lords repelled, and sustained the order of this process, and found that there was no necessity to the pursuer to seek that decreet of removing to be transferred in him active, to represent the person of the obtainer of that sentence; far less that it needed to be transferred in the person of the defender, seeing he was called as succeeding in his umquhile father's vice. And the Lords found that the pursuer, as heir to his father, obtainer of the sentence, and being so infeft in the land, might, hoc ordine, pursue this action, without any other action of transferring of the sentence in him active. Which decision appears to disagree from the form kept of old.

This interlocutor was thereafter altered upon the 18th of March 1626. For then, that action being called, the Lords found, that the decreet of removing ought to be transferred in the pursuer active, before he could pursue this action libelled, albeit he was both heir and heritor of the lands libelled; and so found no process, while the sentence was transferred active, but found no necessity to transfer it passive.

Act. Nicolson. Alt. Scot. Scot, Clerk.

Vid. 10th March 1626, L. Capringtoun.

Page 172.