A promise not to remove may be proved by witnesses, to the effect of preserving in possession for one year, but to no further effect.
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There was one Fraser that pursued one Leslie for succeeding in the vice of the Laird of and Mr William Leslie his brother; a decree of removing being before obtained against the said Laird and his brother. It was answered and excepted by Leslie, That he ought not to be decerned to have entered as vitious possessor, because he entered before the warning, by virtue of a title given to him by one Gordon, liferenter of the lands, and by virtue of the same was in possession, and so he not being called to the said decree of warning, he could not be decerned as vitious possessor. To this was replied, and they offered them to prove, That the said Laird of and Mr William his brother remained continually in possession until the time of the said warning, and so the defender could not be heard to make that allegeance. The contrary was alleged by the other party, That he was in possession before the warning; so the question was anent the priority of probation. There was alleged for the pursuer a practick of before, 22d November 1580, between Allan Couts younger and Patrick G——, (See Appendix), where the exception was proponed and repelled. It was alleged, That the practicks were not alike, for Allan Couts libelled possession before warning, and so took away the exception, which was not contained in this libel. The Lords pronounced by interlocutor, after the matter had been sufficiently reasoned and heard over again, under the pain of amand, that the reply should be admitted, and repelled the exception; licet nonulli dominorum in contraria fuerunt opinione, that an exception being a relevant exception to have stopped a warning, should also have stopped the succeeding in the vice; and the decreet of removing was given parte non comparente.
In the same action, it was excepted by the defender, That he ought not to have been decerned to have succeeded in the vice, because the pursuer promised to let him sit still for the space of a year. The exception being found relevant by the Lords, the question was, whether the same should be admitted to be proved by writ or witnesses. The Lords found by interlocutor, that it being an allegeance of the promise of an year, the same might be proved by witnesses, or prout de jure.
Fol. Dic. v. 2. p. 231. Colvil, MS. p. 313.
*** Similar decisions were pronounced, May 1582, Monteith against Tenants, No 2. p. 8397, voce Locus PoenitentiÆ, and 20th March 1629, Affleck against Mathie, No 7. p. 5409, voce Herezeld.—There is a case likewise to the same effect in Erskine MS. 13th January 1592, Binning against Douglas. That MS. is not in the Advocates' Library. See Appendix.
