Scottish Court of Session Decisions

Subject_1 REMOVING.
Subject_2 SECT. I.

Who entitled to pursue a Removing.

George Hamilton, and Hamilton of Grange, his Father and Administrator
v.
Captain George Boswell

Date: 10 February 1715
Case No. No 36.

A precept of sasine by a father, as administrator in law for his son, a sufficient title.

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In an action of removing, at the instance of these pursuers against Captain Boswell, it was, among other points, alleged for the defender, That the pursuer's title seemed defective, he being only infeft on a precept of sasine granted by the father, as administrator of law for him; which is the same thing as if the pursuer, being major, had granted a precept for infefting himself, which could never be sustained.

Answered for the pursuers, That our custom has directed the method of a superior's establishing the right of property in his own person, upon that superveniency, viz. either by obtaining precepts from the Chancery, if the King be the superior's immediate superior, or by the superior's granting a precept for infefting himself in the property, which was done here. And though thus it falls out that the giver and receiver of the infeftment is the same person, yet that is no matter; for one man often sustinet duplicem personam; and in different respects, and different rights, the same person may both give and receive. And this method of taking infeftment was solemnly found to be proper, in the case of the Daughters of Mr James Morton No 34. p. 6917. 26th November 1608.

The Lords repelled the nullity, and sustained the summons and warning ad hunc effectum, to make the defender liable to remove from the lands at Whit-sunday next, but not for violent profits.

Act. Dalsorf. Alt. Troup. Clerk, Dalrymple. Bruce, v. 1. No. 65. p. 79.