Warning, in what Cases necessary. - How to be executed.
Alexander Hamilton v. Harper
Date: 16 February 1669 Case No. No 66.
Warning by chalking the door, from a shop let in tack, not sustained at the instance of a singular successor.
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Umquhile John Hamilton apothecary, having purchased a tenement in Edinburgh, to himself in liferent, and his son Alexander in fee; thereafter he borrowed 1000 merks from Thomas Harper, and gave him a tack of a shop in the tenement for the annualrent of the money. After his death, Alexander his son used a warning by chalking of the doors by an officer in the ordinary form; and he being removed, Alexander pursues now for the mails and duties of the shop from his father's death till the defender's removal; who alleged absolvitor, because he bruiked the tenement by virtue of his tack, et bona fide possessor facit fructus perceptos suos. It was answered, That the tack being but granted by a liferenter, could not defend after the liferenter's death, and could not be so much as a colourable title of his possession; 2dly, That he could not pretend bona fides, because he was interrupted by the warning. It was answered by the defender, That the tack was not set to him by John Hamilton as liferenter, nor did he know but he was fiar, being commonly so reputed, neither could the warning put him in mala fide, because there was no intimation made thereof to him, either personally, or at his dwelling-house, but only a chalking of the shop-door.
The Lords sustained the defence and duply, and found him free of any mails or duties, till intimation or citation upon the pursuer's right. Here the pursuer did not allege that the warning by chalking of the shop-door came to the defender's knowledge, as done by the pursuer.
Fal. Dic. v. 2. p. 336. Stair, v. 1. p.606.*** Gosford reports this case:
In a pursuit for mails and duties at the instance of Alexander Hamilton against Harper shoemaker in Edinburgh as possessor of a laigh house within the said burgh, it was alleged for the defender, That he bruiked by virtue of a tack set by the pursuer's father for the annualrent of the 1000 merks lent by the defender, for which he had retention of the annualrent during the tack. It being replied for the pursuer, That his father, was only a liferenter, and so the tack could not defend for the years subsequent to his decease. The Lords, found that the pursuer's infeftment of fee being granted to him when he was a child, and in familia, and never any diligence done thereupon till four or five years after his father's decease, the defender was in bona fide to possess until he was lawfully warned and cited; and found, that albeit that the shop was a part of a tenement within burgh, that the chalking of the door by an officer was not a lawful warning or citation; which they declared they would only sustain to be lawful when it was done at the instance of the setter of the tack or house, but not at the instance of a singular successor.
