Subject_1 QUOD AB INITIO VITIOSUM. Subject_2 SECT. IV.
Making up Titles ex post facto.
Dalrymple v. Douglas
Date: 18 December 1632 Case No. No 46.
An appriser having charged the superior, pursued a removing. This was sustained, tho' the infeftment was after the warning, but the Lords superseded removing till Whitsunday, and refused violent profits.
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Andrew Dalrymple having comprised from George Douglas of Waterside some lands to be holden of the said George his father, superior thereof, and the father being denounced to the horn, upon letters of four forms, for not receiving of the compriser; and thereafter he being received, and infeft by the Lord Loudon, superior, to the father, of the lands, pursues removing against the debtor, from whom he comprised, and against the father his son's superior, and against the son's son, and their tenants; but the title of this pursuit, was only the comprising, and the homing against the goodsire, who was superior to his son; against which the defender alleging, That the said comprising, and horning, were not such a real title as might produce removing, the pursuer not being infeft in the lands, without which he could never be heard to seek any person to be removed, specially after seeing the horning is after the warning, and so be could not warn upon the first charge, which only preceded the warning, all the rest of the charges and hornings being sinsyne; and where the pursuer replied, That he was upon the superior's disobedience infeft, as said is, by the immediate superior; he duplied, That this pursuit was not founded upon that title, and he could not be heard to reply upon a writ which is no title of the pursuit, and which ought to be produced in ingressu litis and shown to the party; and if it were produced, and libelled, yet it is after the warning, and so cannot sustain the warning preceding. The Lords repelled this exception, and duply, and sustained the pursuit fortified with the reply, which was received by way of reply, and sustained to produce this action, albeit both the horning and infeftment replied upon were after the warning; and this was the rather found by the Lords, seeing this removing was sought only against the debtor, from whom he comprised, his son, and his father, and their tenants, and not against any other, who clothed themselves with any other right to the lands, which might have excluded this compriser, and maintained their own possession; but the Lords superceded the execution of removing to Whitsunday, betwixt and which the defenders might remove; and declared they would grant no violent profits, the defenders paying to the pursuers the ordinary duties of the lands.
Act. —— & Belshes.Alt. Gilmore.Clerk, Gibson.
Fol. Dic. v. 2. p. 306. Durie, p. 659.
