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The Lo. Johnston pursuing removing from the lands of Knock against the E. of Nithsdale, who alleging, that no process ought to be granted in that removing against him, or any others of the defenders; because he neither was warned, nor the Lo. Cranston his author, nor any to represent him, albeit his said author was heritably infeft in the lands libelled, by a public infeftment holden of the King, proceeding upon the forfaultry of the umquhile Lo. Maxwell his brother, and that the excipient stands sicklike infeft in the same lands, and by virtue of their infeftments they have been these 27 years in possession of these lands libelled, by receiving of duty therefor yearly from the tenants, possessors of the ground; and being replied, That he hath summoned by his summons of removing the E. of Nithsdale, so that there was no necessity to warn him, and so much the rather because he was not infeft the time of his warning, which was executed in anno 1621; neither was there necessity to warn any to represent his author the Lord Cranston, because he needed not to take notice of him, nor of no other, having to do with his own tenants; like as he offered to prove, that these tenants defenders were ever tenants to him, and to his father, and to his father's author, past memory of man; neither can the defender be ever able to shew, that ever any of the Lord Maxwell's predecessors were infeft in these lands, so that the Lord Cranston's infeftment upon the Lord Maxwell's forefaultry ought not to be respected; and if it could be respected, yet he had no necessity to warn him, because before the warning he was denuded of his right in favours of the Earl of Nithsdale the defender, wherethrough he needed never to know him, especially seeing the most and longest possession which he could allege to have, by virtue of this right of the Lord Cranston, which was in anno 1610, and whereof by contract he was denuded in anno 1617, is thereby only for the space of seven years; which is not of that sufficiency, that it laid any necessity on him to warn the Lord Cranston's heir; and the Earl of Nithsdale was not infeft upon that contract made in his favours, while after his warning, viz. in anno 1621, so that he could not warn him; and whatever possession he had since the warning and intenting of this cause,. it cannot be reputed to have the force of a possessory judgment, but must be esteemed vicious and violent; notwithstanding of the which reply, the Lords found the exception upon the not warning relevant, albeit the Lord Cranston's possession before the warning was only for the space of seven years; and albeit the Earl of Nithsdale was summoned, and that he compeared, and proponed this exception, of not warning of himself, or his author, which the Lords found he might propone, notwithstanding of his compearance; and albeit the pursuer offered to prove his retaining of the possession, being in libello, and thereby craving preference to the defender; and albeit the defender never offered to prove, conform to the act of Parliament 1584, that the forefaulted person was five years in possession of the lands before the forefaulture; none of which were respected, but the exception found relevant ut supra, and necessity found that he should have been warned.
Act. Stuart et Johnston.Alt. Advocatus et Nicolson.Clerk, Scot.
Durie, p. 837.
