A party, who had sold the lands in dispute, and was liable in warrandice, was received as a witness.
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The heritor, after the liferenter's decease, charging summarily, without preceding warning, to remove from the tower and manor-place, and some other houses pertaining thereto, wherein the defender alleging, That these other houses, by and attour the principal house acclaimed by the pursuer, pertained not to the pursuer's predecessors, nor to those lands wherein they were infeft, but that the same pertained to the defender, and stood upon the lands pertaining to the defender heritably, which were lying contiguous to the pursuer's lands; and either of the parties qualifying certain arguments and presumptions, whereby they alleged these houses controverted to pertain to either of them; the Lords, before, having given commission to two of their number to visit the said lands and houses, and to take trial by witnesses, and all other lawful manner, to which of the party's lands these houses belonged; after report made by the two Lords, and consideration of the depositions of witnesses taken by them, which were produced by either of the parties, they finding the matter not to be clear, to which of the parties they belonged properly, they ordained both parties to produce before them an equal number of witnesses, for qualifying of either of their arguments, that, after consideration thereof, they might proceed and decide the cause: And this was done, albeit it is not ordinary in this judgment to take witnesses for both parties; but this was ordained in this case, where the matter was perplexed and uncertain on both sides, for their claims to the houses controverted; and as their probation should be found most clear and unsuspected, according thereto the Lords would decern: And it was found, that the pursuer might lawfully use the Laird of Blauns to be witness for him, albeit he had sold the lands controverted to the pursuer, and was subject in warrandice thereof, seeing the same was sold under reversion, to which reversion he had made the defender and his authors assignees.
Act. Nicolson.Alt. Stuart.Clerk, Gibson.
Durie, p. 561.
