Scottish Court of Session Decisions

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

Paterson
v.
Robison

Date: 7 March 1627

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In an action betwixt Paterson and Robison, whereby Paterson craved the defender to be decerned summarily to deliver to him the possession of a dwelling-house in Edinburgh, whereof he was heritor; and whose heritable right was suspended for the liferent of a woman, whose right of liferent was reserved in his heritable right, and she being deceased five or six days before the summons, he craved the defender, who had entered to the possession of the said house during the time of this liferenter's sickness, she dying therein, to be decerned to deliver to him the said possession, and that the Bailies of Edinburgh should make an inventory of the goods that were in the house:—the Lords found, that this defender could not be decerned so summarily to remove, without a warning were first made to her, seeing she alleged that she was liferentrix of the said house; neither was the reply admitted, whereby the pursuer replied, that this defender had consented to that alienation made to the pursuer, and so she was in effect his author, and he needed not to warn his own author. Which reply was not sustained, in respect the defender alleged that that consent was under reduction, being revoked by her within a month after the giving thereof, as done by constraint of her husband. In respect whereof the Lords found, that this process could not be so summarily sustained, but that a warning should precede.

Act. Livingston. Alt. Stuart. Scot, Clerk.

Vid. 16th February 1628, Merton against Thomson.

Page 285.