Custom of a barony, as to effect of a relict paying herezeld, to be proved by writ or oath, not by similar instances.
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In a removing pursued at the instance of the Laird of Rowallan against Janet Muir, she compearing, alleged, That this same pursuer, by his discharge produced in process, granted the receipt from her husband and her, and satisfaction of an herezeld, when the same should fall out to be due to him, which is alike as if she herself had paid it after her husband's decease, seeing the pursuer hath beforehand granted him, as said is, to be satisfied by him and her for the same herezeld, when it should happen; and it is true, that it is the custom of the barony, that where the relict pays an herezeld, she bruiks the land for payment of the old duty during her lifetime; which custom hath been kept past memory of man. This exception was found relevant, but the alleged custom was ordained to be proved by writ expressly or oath of party, and no otherwise, and so it was admitted to be proved, and not by instances of others, who having paid the like, bruiked for their lifetime; which was not found sufficient.
Act. ——Alt. Miller.Clerk, Gibson.
Fol. Dic. v. 2. p. 232. Durie, p. 227.
