Daughters had been ejected upon decdee of removing against their mother, to which they had not been made parties. Ordered to be replaced in possession.
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The four daughters of Scot pursue an ejection against the Earl of Hume, out of some lands belonging to them. It was alleged for the Earl, Absolvitor; because he entered into possession by virtue of a decreet of removing given at his instance anno 1650. It was replied, That the decreet was only against the pursuer's mother, that they were never called nor decerned therein. The Earl answered, first, That the decreet was against the mother to remove herself, bairns, tenants, and servants, and her daughters were in the family, being then young bairns; and he was not obliged to know them, they not being infeft, but having only an old right, whereupon there was no infeftment for 40 years the time of the decreet.
The Lords, in respect of the defence, restricted the process to restitution and the ordinary profits, and decerned the Earl to restore them to possession instantly, but superseded payment of profits till both parties were heard as to their rights; for they found that the decreet of removing could not extend to their children, and albeit they were not infeft, yet they might maintain their possession upon their predecessor's infeftment, how old soever, seeing they continued in possession.
