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The Lords found the act of possession by the space of five years not to militate in favour of the heir of the forfault person, bruiking by disposition of the donatar, except the heir will make faith that he has just cause to affirm that the lands were his heritage, and that he is prejudged by the want of his heritage, and evidents abstracted from him.
They found that the possession of five years shall be proven by any witnesses of the country.
Fol. Dic. v. 1. p. 315. Kerse, MS. fol. 125.*** Haddington reports the same case:
James Maxwell, groom of his Majesty's bed-chamber, infeft heritably by his Majesty in the lands of Glendinning, fallen in his hands by forfeiture of John Lord Maxwell, and by resignation of Robert Earl of Somerset, and made assignee by the said infeftment to the warning and action of removing frae the said lands, and constitute assignee be Robert Earl of Nithsdale, who was made assignee by Robert Earl of Somerset, to the warning and action of removing intented by him against the Laird of Westraw, pursued Westraw to remove. He excepted, That James Maxwell could have no action, because the warning being made by the Earl of Somerset in anno 1610, he resigned the lands in the King's hands ad remanentiam in anno 1612; and so neither was the warning transferred to the King by the resignation, nor could Somerset be desired to be decerned to be possessed in lands resigned to him, but only had action for the violent profits for the years betwixt the warning and resignation, and the Earl of Nithsdale was not capable of the assignation, not being infeft; which allegeance, and the answer thereto, being considered, the Lords thought the warning and profits thereof could not pertain to the King by the instrument ad remanentiam, and that he who was made assignee to a warning, having, no other right to possess, could not be decerned to be possessed; but because the Earl of Somerset's whole right, petitor and possessor, concurring in the person of James Maxwell, who was heritably infeft by the King, in whose favour Somerset resigned ad remanentiam, and being assignee constitute by Nithsdale, who was assignee to Somerset, the said James Maxwell was capable of the warning, and had sufficient action and interest to pursue removing. Thereafter, Westraw alleged, That James Maxwell's infeftment could give him no right, because it proceeded upon the Lord Maxwell's forfeiture, who was never infeft. It was answered, That he was infeft in the barony of Esdale, whereof the lands of Glendinning were parts and pertinents, and were so possessed be the Lord Maxwell five years before his forfeiture, which was a sufficient title without infeftment, in respect of the act of Parliament in August 1584. It was answerered, That the Lord Maxwell could not be heard to pretend the want of his evidents, because he was not in the case of an extraordinary donatar made by the King, but was restored to all his lands, and served heir to his brother and father; and therefore behoved to be presumed to have their evidents. The Lords repelled the allegeance, in respect of the reply to be proven by ane cognition, all parties having interest being called according to the act of Parliament. It was thereafter alleged, That the E. of Nithsdale could never claim benefit by the forfeiture, because it was rescinded by Parliament and he restored against the same, et sic quod approbo non reprobo. It was answered, That the lands disponed be his Majesty to James Maxwell were excepted from the act, and he thereby ordained to enjoy them with all privileges. Westraw replied, That the exception could not subsist, since the forfeiture was declared null and rescinded, nothing could fall to the King by the forfeiture; and farther alleged, That the Lord Nithsdale could never be heard to allege the benefit of the act of Parliament, because it appointed the five years possession to be peaceable before the forfeiture, and he offered to prove, that it was interrupted lawfully by warning and summons of removing used by the auld Laird of Parton in anno 1605, and by young Parton by warning and summons of removing anno 1606, whereupon diverse interlocutors had past, and by Westraw's real possession of a part of the lands by consent of the tenants after his warning. It was answered by James Maxwell, That warnings and summons of removing, whereupon nothing had followed, was no interruption; and that the tenants transacting with Westraw, could not invert the Lord Maxwell's possession, to whom they had paid mail and duty many years before; and, that no respect could be had to the warning whereupon nothing had followed. The matter being reasoned, and the last part not decided, it was submitted to the Lords.
