Where a life renter was alive at the time of the warning, but died before the term of removing.
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In a removing, wherein the tenant warned, alleging him to be tenant to the Lady, liferenter of these lands, and who was living the time of the making of the warning, and who was also warned, and she being then living, albeit now dead, no process ought to be sustained against him upon that warning; and the pursuer replying, That albeit she was living when the warning was made, yet seeing she was dead before the Whitsunday to which she was warned, the warning now, and process thereon, ought to be sustained, her right becoming extinct:; even as if a tack had been set, which would have endured to that Whitsunday, the setter might have warned before the Whitsunday, to remove at the Whitsunday, which would have been sustained; notwithstanding whereof, the foresaid allegeance was sustained, and no process found upon that warning, albeit she died before the term; seeing it is not alike as if a tack had been set of that endurance to the term, seeing there it was constant, that the tack would then expire; but it is not so in warning of a liferenter living the time of the warning, for none can be certain that she will die before that term, and thereupon, to make the warning upon uncertainty of cessation of her right. And it being alleged, That the warning was made at the kirk of which is all ruinous, and not at the kirk of, to the which kirk, the kirk whereat the warning is made is united by act of Parliament, and only divine service used thereat, the Lords were of the mind to sustain this allegeance, and to reject the warning therefore, but it was not decided, in respect of the discussing of the other allegeances, ut supra.
Act. Cunningbame.Alt. Nicolson.Clerk, Scot.
Durie, p. 646.
