A command to tenants to pay their rents to certain persons found proveable only by writ, or oath of party.
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In a pursuit of removing from a piece of land, claimed by the pursuer, as part and pertinent of the land wherein he was infeft; wherein the defender alleging, That it was pertinent of those lands wherein he was infeft, within such particular bounds, specially designed in his infeftment, within the which bounds and marches the land controverted lay, and was ever so bruiked by him; and the pursuer replying, That this piece of land lay within his land, wherein he was infeft, and was severally and distinctly known from the excipient's lands; likeas there was a dyke, which distinguished the pursuer's land from the defender's; within which dyke, the pursuer's land, and this piece controverted, lay on the one side, and this defender's land on the other side; likeas also the tenants of the defender's lands, who possessed the lands controverted, paid to the pursuer's predecessors mail and duty for this land, now in question diverse years together, at the direction and command of the defender's predecessor; this reply being admitted to the pursuer's probation, at the term assigned, witnesses being produced to prove the same; and it being questioned, If the direction and command ought to be proved by witnesses, as this defender alleged it ought not to be, but only ought to be proved by writ, or oath; the Lords found, that this direction or command was only probable by writ, or oath of party, and that witnesses ought not to be admitted, nor received, to prove the same.
Clerk, Gibson.
Fol. Dic. v. 2. p. 228. Durie, p. 703.
