A gift of non-entry, relative to the principality, granted by the King, without mentioning that he acted as Prince, found null.
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Mr John Johnston, donatar to the non-entries of the lands of Malcomstoun, pursued Alexander Hepburn, now of Riccarton, to hear and see the said lands decerned in non-entry. It was excepted, That the desire of the summons could not be granted to this pursuer, because the non-entries of the saids lands were granted long before the pursuer's gift to——Futhie, who constituted Henry Wardlaw assignee to it, from whom Mr David Wardlaw had right, who disponed it to umquhile Archibald Hepburn, eldest brother to this defender, to whom he was heir. It was replied, That allegeance was not relevant; because this pursuer had intented foresaid declarator. The defender answered, That no declarator was necessary; because Malcolmstoun was the heritage of the house of Riccarton, and produced a practick, whereupon it was found in favour of John Logan of Couston, that a declarator was not necessary when the gift was granted to the heritable proprietor. It was farther replied by the pursuer, That Futhie's gift was null, because it was given by the King, the lands being holden of the Prince. The defender answered, That it was given in anno 1585, when the King himself was Prince; and so being given by him who had power, was sufficient. It was answered to this, That albeit the King was then Prince, yet he he should have designed himself Prince in the gift, and given it as Prince, otherwise it was null, as breeding confusion of the King's lands and the lands of the principality; and produced a practick of reduction of the retour of the lands of Laurieston in anno 1511, because they were retoured holden of the King, they being lands of the principality, albeit the King was then Prince. The Lords, considering that Alexander Hepburn, and Archibald his brother, were never proprietors of the lands, and had no declarator, and that the lands being held of the Prince, their gift was not given by the King as Prince, the Lords repelled the exception in respect of the replies.
