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The Earl of Lauderdale's goodsir, being infeft in the barony of Musselburgh, which is a part of the abbacy of Dunfermline, by a gift from King James in anno 1584, excepted by the act of Parliament for annexation of kirk-lands in anno 1587, and repeated in the act of Parliament 1593; his father got a gift in anno 1641, and Oxford got another the same year from the King as heir to Queen Anne his mother, who had an heritable disposition of the whole lordship of Dunfermline from the King after Lauderdale's first right. Lauderdale obtained conformation of his first and subsequent rights in the Parliament 1661, declaring all rights formerly granted by the King since Lauderdale's first right void, which ratification bears an express provision, That it shall not be prejudged by the act salvo jure cujuslibet. The defender alleged absolvitor in hoc judicio possessorio, because his father was infeft by the King in anno 1641, and by virtue thereof in possession twenty years before this pursuit; and as for his ratification, the defender not being called thereto, it cannot take away his right, being founded super jure communi until the pursuer insist in reduction, in which case the defender shall answer, but is not obliged to answer in hoc judicio; and as for the exception of the act salvo jure, it is against the common law; and the act salvo jure is posterior without repeating that exception. The pursuer opponed his ratification, excepting the act salvo jure, which being done upon the King and Parliament's certain knowledge, upon consideration of Lauderdale's prior right; the Lords cannot be judges to reduce the sentence and statute of Parliament, as Durie observes to have been found in the case of the Earl of Rothes and John Stewart of Coldingham, (See Appendix.) The defender repeated his answer, and for these decisions opponed the tenor of the act salvo jure 1633, and repeated 1661, whereby the Lords are ordained to decide in the rights of private parties, according to law, without respect of ratification or other private statutes in favours of particular persons such as this, which being after these decisions, clears and enlarges the power of the Lords. The pursuer opponed his ratification and exception of the act salvo jure, which bears expressly, That it should stand as a public law, and so was no private statute mentioned in these acts salvo jure.
The Lords having considered the case, and that such exceptions from the act salvo jure were of dangerous consequence to the lieges, they ordained the parties before answer, to dispute the point of right as if such an exception of the act salvo jure had not been granted, but they thought that defence upon a possessory judgment being but a point of form, whereby the rights of parties were not competent by exception or reply, the Parliament might dispense therewith, and also might repone parties as to the matter of prescription, or quoad minor non tenetur placitare; but if without these and such the pursuer had a prior valid right. The Lords were loath to enter upon the case of the exception of the act salvo jure.
