It was objected against a removing, that the pursuer had promised verbally not to remove the defender for two years after expiry of his tack. The promise found probable by witnesses for one year, but for the second year scripto vel juramento only.
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William Baillie in Stanypeth, rentaller of Blackcastle, lying in the barony of Carnwath and sheriffdom of Lanark, summons Margaret Adam, and James Ure, her spouse, and——Somerville, her son of the first husband, to remove therefrom. Alleged, No removing, because they bruik the one half thereof by promise of the pursuer not to remove them, and the other half pro indiviso. Replied, The defender has always acknowledged the pursuer's right of the hail lands libelled, in so far as they have paid him mail and duty for the hail lands. Admits the reply and summons. 2do, Alleged, The pursuer promised not to remove them for two years after the expiring of the tack, which tack is but lately expired the last Whitsunday 1611. Admits the exception relevant to be proven by witnesses, for bruiking of the lands for one year after the warning, and that it ought to be proven by writ or oath of party for the other year or two.
Fol. Dic. v. 1. p. 560. Nicolson, MS. No 340. p. 236.
