A proof by witnesses allowed, that an apprising was satisfied.
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Certain Creditors of the Master of Gray's, being infeft in annualrent out of certain of his lands, pursue poinding of the ground. It was alleged, for the Lord Gray his son, absolvitor, because he has right to an apprising, and infeftment of Alexander Milne, which is expired, and prior to the pursuers' infeftments. It was answered, That the apprising was satisfied by the umquhile Master of Gray, and a blank assignation thereto was taken, which was amongst the Master's writs, and this Lord filled up his name after the Master's death. This being unquestionably relevant, the difficulty was concerning the manner of the probation.
The Lords, before answer, ordained witnesses ex officio to be examined; whereupon the Lord Gray's brother was examined, who acknowledged he saw the blank assignation by his brother; and Mr Robert Prestoun being examined, and several other witnesses, above all exception, and also the Lord Gray himself, who acknowledged he got the assignation blank after his father's death, but not amongst his writs, and that he gave a bond therefor; many of the Lords thought, that seeing, by the late act of Parliament, the apprising, though expired, was redeemable from him, for the sum he truly paid for it, that it were more just and safe that he should be preferred, unless the creditors would purge, and satisfy the sum, and that it were a dangerous example to find so important a writ, as this assignation, to be taken away by witnesses; yet the plurality found the testimonies so pregnant and unquestionable, they found the reply proved thereby, and found the apprising retired, and satisfied by the debtor, and so extinct.
