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John Byres being heritably infeft in the Cotes, pursued Margaret Law to remove from a part thereof. Alleged, Absolvitor, because she was apparent heir to her father, who was infeft in the same. Replied, The pursuer had obtained a gift and declarator of non-entry of her land, in respect whereof, and of his heritable right foresaid, he had good action to remove her; albeit his reply took away her exception, yet if he had not used it as a title in this removing, that he had right to the lands by virtue of that non-entry, as well as by his heritable title, the exception would have been found relevant for eliding the pursuit, but, in respect the pursuer libelled upon both his titles, the action was sustained.
