Warning, in what Cases necessary. - How to be executed.
L Pitmedden and Lo. Elphingston v. Smith
Date: 7 July 1627 Case No. No 62.
In a similar case, the defender was decerned to remove in the same process without a new warning, but not till the term, and without violent profits.
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In a removing, pursued by Pitmedden and the L. Elphingston against Smith, the time of this warning, whereupon this removing was pursued, the defender had an heritable infeftment of the lands libelled, standing and clad with possession, which was reduced by the pursuer, after the making of the warning, the removing interned thereupon depending in the meantime undisputed, but lying, over, not mentioned betwixt the parties, and after sentence of reduction, whereby the defender's right was taken away, which was standing when the warning was made; the pursuer insisting in his removing; and the defender alleging, That his infeftment foresaid standing untaken away the time of the warning, albeit since syne reduced, was enough to produce absolvitor from that warning, while he were warned of new again;—the Lords, in respect of the said sentence of reduction, which reduction was intented before the warning foresaid was made, and the defender thereby summoned before the warning, for eschewing of pleas, and unnecessary actions betwixt parties, decerned the defender to remove, in this same process, by virtue of the foresaid warning; but assoilzied him from all violent profits, and found him possessor bona fide, and ordained him to remove from this land after separation of this crop, which was laboured before the sentence reductive, and that he should possess the barnyard, and also the barns, and likewise an house for winning and threshing of the corns, while Beltane thereafter.
Act. Baird.Alt. Oliphant.Clerk, Gibson.
Fol. Dic. v. 2. p. 338. Durie, p. 306.*** Auchinleck reports this case:
A compriser warns the tenant, who was infeft by him from whom the land was comprised, to remove, but after inhibition was served at the compriser's instance. So the compriser intents reduction of the tenant's infeftment, ex capite inhibitionis, and executes his summons of reduction first, and then makes warning; and a year or two thereafter obtains decreet of reduction of the tenant's infeftment, and thereafter pursues removing upon the former warning. The Lords decerned the tenant to remove after his corns are win, but sustained the action of violent profits upon that warning, made by the decreet of reduction.
