In a process of ejection, an alleged consent to remove allowed to be proved prout de jure.
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Margaret Robertson pursues an ejection against William M'Intosh, who alleged absolvitor, because he offered him to prove, that he had warned the defender's umquhile husband, and that he dying shortly thereafter, he enquired of his wife, if she would continue in the possession, and she declared she would not, but willingly removed. It was replied, Relevat scripto vel juramento; but witnesses cannot be received to prove willingness of removing, being mentis.
The Lords considering that the defender alleged no tack nor title in writ, but mere possession, were inclinable to sustain the defence probable, prout de jure; but withall, considering the parties were Highlanders, and had great advantage, whoever had the benefit of probation; therefore they ordained the pursuer to condescend what deeds of violence were done in ejecting her; and both parties to condescend what persons were present at the pursuer's outgoing, and the defender's incoming, being resolved to examine all these before answer, so that there might be no advantage in probation to either party.
