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<DATE>2009-06-01</DATE>
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<NAME>Scott Lepisto</NAME>
<RESP>MURP</RESP>
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<IDG S="marc" R="UM" ID="B03505">
<STC T="W">g1623b</STC>
<BIBNO T="oclc">52211838</BIBNO>
<VID>175688</VID>
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<HEAD>INFORMATION FOR The Lord <HI>Gray.</HI> AGAINST The Laird of <HI>Pourie.</HI></HEAD>
<P>THE Laird of <HI>Pourie</HI> hath thought fit to prote&s;t again&s;t the Lords of Se&s;&s;ion, and trouble the E&s;tates of Parliament for remeid of Law in one of the ea&s;ie&s;t and plaine&s;t ca&s;es that po&s;&s;ibly could occur, and for its importance unworthie of the Trouble of this Honourable Court, and which is &s;hortly thus, The Lord <HI>Gray</HI> in <HI>February</HI> 1666, di&s;pones to <HI>Pourie</HI> for the &s;umm of 21000 Merks the <HI>Craige of</HI> Brughtie, <HI>with the Salmond-Fi&s;hing, Syze-Fi&s;h, and other Fi&s;hings belonging thereto, and oblieges him to infeft</HI> Pourie <HI>in the fore&s;aid Craige with the Fi&s;hings; and to warrand this Infeftment at all hands.</HI> And <HI>Pourie</HI> was thereupon Infeft under the great Seall, and entered in po&s;&s;e&s;&s;ion accordingly.</P>
<P>But <HI>Pourie</HI> exacting the Syze fi&s;h accu&s;tomed to be payed, with more then ordinary Rigour, provocks the Earl of <HI>Panmure</HI> to who&s;e Lands four of the Boats lyable in the Syze fi&s;h pertained, to rai&s;e Declarator of Immunity, and tho that <HI>Pourie</HI> did likewayes rai&s;e a Declarator of Servitude on his part; Yet <HI>Panmure</HI> prevails and is a&s;&s;oilied, Whereupon <HI>Pourie</HI> pur&s;ues the Lord <HI>Gray</HI> upon his <GAP DESC="illegible" RESP="UOM" EXTENT="1 span"> the Syze fi&s;h of the &s;aid four Boats, And the Lords having heard both parties, did mo&s;t ju&s;tly find almo&s;t in one voice, that the fore&s;aid pretended Eviction was no ground of Recour&s;e. Again&s;t which Sentence <HI>Pourie</HI> prote&s;ts, and now applyes to the Parliament for Remeid of Law.</P>
<P>And for the Parliaments better Information, and the &s;atisfaction of all men in this ca&s;e. It is to be adverted. <HI>1mo.</HI> That all payed by <HI>Pourie</HI> for the Craige of <HI>Brughtie,</HI> with the Salmond Fi&s;hing, Syze Fi&s;h, &amp; other Fi&s;hings there|to belonging, was 21000 Merks, whereof there was a 1000 Merks payed to a certain Per&s;on to procure to <HI>Pourie</HI> this bargain; So that all that was payed to the Lord <HI>Gray</HI> was neat 20000 Merks, and for which he got of Rentalled E&s;tate 1200 Merks, and a Hog&s;head of Wine for the Salmond Fi&s;hing, and 230 Merks, with a Barrel of Salmond of a Few duty, and this by and attour the Syze Fi&s;h, which is the &s;ubject of this Contraver&s;ie.</P>
<P N="2"><HI>2do.</HI> That the Sy&s;e Fi&s;h is not expre&s;ly mentioned in the Old Rights: But the Lord <HI>Gray</HI> and his Predece&s;&s;ors having come in u&s;e to uplift them, <HI>Pourie</HI> would have them In&s;ert in his Di&s;po&s;ition, tho there was no more intended by the bargain, but that <HI>Powrie</HI> &s;hould have the Craig of <HI>Brughtie,</HI> with the Sal|mond Fi&s;hing, and other Fi&s;hing, and pertinents thereto belonging. <HI>3tio.</HI> To Evince that the Syze Fi&s;h was only expre&s;t in the Di&s;po&s;ition made to <HI>Pourie</HI> as a pertinent, and with the hazard of its belonging or not belonging, is evident from the rental, the Rule of the Barrony, whereof the Syze-Fi&s;h makes no Artickle, becau&s;e it was in effect only di&s;poned as a pertinent po&s;&s;e&s;t, but without any a&s;&s;urance of Right. And <HI>4to.</HI> It is to be adverted, that the
<PB N="2" REF="2">whole Syze Fi&s;h of the Four Boats is not in truth worth more than <HI>fourtie Merks,</HI> tho <HI>Pourie</HI> Lybels them at 400, and for to Prepo&s;&s;e&s;s the Members of Parliament, he has Printed and Di&s;per&s;ed one of his Old Informations before the Lords, which the Lords did mo&s;t Ju&s;tly Judge to be of no moment; And therefore to &s;u&s;tain the Lords Sentence, The Lord <HI>Gray</HI> alledges.</P>
<P><HI>Fir&s;t,</HI> That the Syze fi&s;h not having been principally di&s;poned, but only ad|jected as a Pertinent without any expre&s;s Limitation, either as to the number of the Fi&s;h or of the Boats, The Eviction or rather the declaring any of the Boats free can never be a ground of Recour&s;e of Warrandice, &amp; the Rea&s;on is, Becau&s;e that Warrandice is given and intended for that which is principally and cer|tainly di&s;poned, but was never yet con&s;trued to extend to what was only di&s;|poned <HI>Acce&s;&s;orie</HI> by way of Pertinent, and the <HI>Ratio Rationis,</HI> is becau&s;e what is di&s;poned <HI>Acce&s;&s;orie,</HI> and by way of Pertinent, is only di&s;poned with the hazard, and in the Suppo&s;ition, That if it be pertinent well and good, and if not, the Di&s;poner is not lyable, becau&s;e he di&s;poned it only as a Pertinent, and this is clear in the Ordinary ca&s;e of Mens di&s;poning Lands with the Perti|nents, or with Mo&s;s, Muirs, Fi&s;hings, and other Pertinents, where it is mo&s;t certain that as to all the&s;e Pertinents di&s;poned only Acce&s;&s;orie and not principallie, the Di&s;poner is no farder lyable then to make over his Title, and if any of them be found not to be pertinent the Di&s;poner is free, becau&s;e all intended was to di&s;pon what was pertinent, and as &s;uch and no farder, which ground being applyed to the Ca&s;e in hand; It is evident that the <HI>Syze-fi&s;h</HI> in the Lord <HI>Grays</HI> Di&s;po&s;ition was only di&s;poned Acce&s;&s;orie; And as pertinent, for the Words are plain, <HI>Viz: With the Salmond Fi&s;hing, Syze-Fi&s;h, and other Fi&s;hings thereto belonging, Or thereto pertinent;</HI> Which are the &s;ame thing, and the expre&s;&s;ing of the <HI>Syze-Fi&s;h</HI> &s;igni|fies nothing, &s;ince it is only di&s;poned as pertinent, nor can it be alledged with any colour, that the word belonging or pertinent doth only affect the words, <HI>(And other Fi&s;hings)</HI> immediatly preceeding, &amp; not the <HI>Syze Fi&s;h; For it is evident</HI> as the light, that the words <HI>belonging</HI> or pertinent doth affect, and is a qua|lification of both.</P>
<P>Nor can it be held for a Rule, that whatever is Di&s;poned expre&s;ly, and for an onerous cau&s;e falls under the warrandice; Becau&s;e it is evident, that if any thing (tho never &s;o expre&s;s) be only di&s;poned by way of pertinent. It falls no farder under the warrandice, &s;ave to oblidge the Di&s;poner, that he has not done any thing in prejudice of his Title, <HI>talis qualis,</HI> and &s;uch as it is; But the true Rule of Law is, that the&s;e things do only fall under ab&s;olute warrandice, which are di&s;poned for an onerous cau&s;e, principally; certainly, and ab&s;olut|ly, and not with the qualification of <HI>pertinent,</HI> which in all &s;en&s;e as well as Law, doth perpetually import its own hazard, and never falls under ab&s;olute warrandice.</P>
<P N="2"><HI>2do.</HI> For farder clearing of the undoubted ground of Law above laid down; It is to be remembred, that the <HI>Syze Fi&s;h</HI> are neither in the Old Rights, nor were they in the Rental of <HI>Pouries</HI> bargain, nor were they preci&s;ely defined either as to the number of Fi&s;hes or Boats, but were only expre&s;t at <HI>Pouries</HI> de|&s;ire, and di&s;poned as <HI>belonging, or pertinent</HI> to give him a Title <HI>talis qualis,</HI> &amp; as his Author had, but no wayes to oblidge his Author in ab&s;olute warrandice, which can never with any &s;hew of Sen&s;e or Rea&s;on be applyed to anything which is only di&s;poned as <HI>belonging or pertinent;</HI> And this is &s;o certain that when ever it is intended, that any thing di&s;poned, as pertinent, &s;hould fall under the ab&s;olute warrandice, It is then expre&s;ly provided, that the Di&s;poner &s;hall warrand it to be pertinent, But if it be only di&s;poned as pertinent with|oute the fore&s;aid expre&s;s provi&s;ion, then in all Law and &s;en&s;e the words <HI>Belong|ing or pertinent</HI> are taxative qualifieing the right, and plainly importing that
<PB N="3" REF="2">the thing is only di&s;poned with the hazard and <HI>Talis qualis,</HI> as it is, which is exactly the Lord <HI>Gray</HI>'s Ca&s;e, as to the <HI>Syze-Fi&s;h</HI> di&s;poned as <HI>pertinent, or belong|ing,</HI> as &s;aid is.</P>
<P N="3"><HI>3tio.</HI> The Ca&s;tle of <HI>Bruchtie</HI> was di&s;poned with the <HI>Syze-Fi&s;h</HI> thereto be|longing, And to evince that the Words <HI>thereunto belonging,</HI> do affect, and qua|lifie the <HI>Syze-Fi&s;h,</HI> is evident from this Ground, That the <HI>Syze-Fi&s;h,</HI> without the &s;aid Re&s;triction, is indefinit vague and uncertain, which cannot po&s;&s;ibly be the Subject of Warrandice, unle&s;s the <HI>Syze-Fi&s;h</HI> had been &s;pecified and de|termined by the number both of Fi&s;h and Boats; And this is &s;o certain, that if we put the Ca&s;e, that the Di&s;po&s;ition had been of the Craig of <HI>Brughtie,</HI> with the <HI>Syze-Fi&s;h</HI> and no more; Mu&s;t not all Men have under&s;tood it of the <HI>Syze-Fi&s;h thereto belonging?</HI> For otherwayes to under&s;tand it of all the <HI>Syze-Fi&s;h</HI> what&s;omever, had been plainly ab&s;urd, &s;eeing then, That the <HI>Syze-Fi&s;h</HI> di&s;|poned, mu&s;t be under&s;tood taxative of the <HI>Syze-Fi&s;h</HI> belonging or pertaining to the Craig: With what colour of Rea&s;on can it be a&s;&s;erted, That the Words <HI>thereunto belonging,</HI> do not affect the Syze-Fi&s;h, when the <HI>Syze-Fi&s;h</HI> cannot be otherwayes under&s;tood; And therefore &s;ince the <HI>Syze-Fi&s;h</HI> were only Di&s;poned by the Lord <HI>Geay,</HI> as <HI>belonging or pertinent;</HI> It is evident that they were di&s;|poned with the hazard, and do not fall under the Warrandice, &s;pecially &s;ee|ing that albeit four Boats be declared free, yet there are &s;ix Boats yet remain|ing, which is more then &s;ufficient to &s;u&s;tain the Lord <HI>Gray</HI>'s Di&s;po&s;ition; Seeing in <HI>Plain Scots,</HI> his di&s;poning of the Craige of <HI>Brughtie,</HI> with the <HI>Syze-Fi&s;h thereunto belonging,</HI> was neither le&s;s nor more, but with the <HI>Syze-Fi&s;h,</HI> whereof the Lord <HI>Gray</HI> was then in the po&s;&s;e&s;&s;ion, &amp; which he was willing to di&s;pone as <HI>Pertinent.</HI> and tran&s;mit what Right he had with the hazard, and &s;o can never fall under the Clau&s;e of ab&s;olut Warrandice.</P>
<P N="4"><HI>4to.</HI> And for <HI>&s;uper abundance,</HI> it could be demon&s;tratt, (if needfull) That <HI>Pourie</HI> &s;uccumbed in his Declarator again&s;t the Earl of <HI>Panmure</HI> through his own Default and mi&s;mannadgement of the Proce&s;s, in &s;o far as the Lord <HI>Gray</HI> having furni&s;hed the Pur&s;uer with two old witne&s;&s;es, who would have deponed upon more as 60 years Po&s;&s;e&s;&s;ion, if they had been interrogat there|on; And <HI>de facto,</HI> one of the Witne&s;&s;es; did depone upon &s;ixtie years Po&s;&s;e&s;&s;ion, and the other concurring Witne&s;s having only deponed in general terms, that the Po&s;&s;e&s;&s;ion had been &s;ince his Memorie, and <HI>Pourie</HI> having neglected to interrogate him upon particular years, albeit he was aged 80 years; Yet the Lords found that the memorie of man in general, is not to be extended above 40 or 50 years at mo&s;t, from which 50 years 7 years of <HI>Panmures</HI> Minority being &s;ub&s;tracted, and four years that <HI>Pouerie</HI> had a Wood&s;et, and Po&s;&s;e&s;t the Lord <HI>Panmures</HI> Land, affected with the &s;ervitude, being al&s;o &s;ubduced upon that principal in Law, that <HI>res &s;ua Nemeni &s;ervit,</HI> which brought the Lord <HI>Gray,</HI> and his Authors Po&s;&s;e&s;&s;ion to 39 years allennarly, and &s;o not compleat|ing the pre&s;cription, was the direct occa&s;ion of <HI>Panmures</HI> Decreet of Immuni|ty; From which the Defender argues two things. <HI>1mo.</HI> That the objection was per&s;onal again&s;t the Pur&s;uer (<HI>nam exceptiones ex per&s;ona emptoris objectae &s;i ob&s;tant venditor de evictione ei non tenetur Leg:</HI> 27. <HI>ff: de evic:</HI>) <HI>2do.</HI> That the immunity is per&s;onal to the Earl as to his own proper lands, whereas the other Heritors who have no Minority, or per&s;onal objection again&s;t the pur|&s;uer, are &s;till &s;ubject to the exaction.</P>
<P>But the Lord <HI>Gray</HI> refers him&s;elf to the plain grounds of Law and Rea&s;on above laid down, which he is confident are &s;o &s;trong and pregnant for maintain|ing the Lords unanimous &s;entence, that the Parliament will-find it was <HI>optime judicatum;</HI> And that <HI>Pourie</HI> for his groundle&s;s and wilful prote&s;ting, and o|blidging the Lord <HI>Gray</HI> to &s;o great expences and trouble in defending this &s;o uncon&s;iderable and trivial affair, both before the Se&s;&s;ion, and now before the Honourable Court of Parliament, ought to be condemned in large expen&s;es.</P>
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