Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Sir William Bennet of Grubet v. Moir of
Date: 5 December 1671
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In the reduction pursued at the instance of Sir William Bennet of Grubet against Moir of Otterburne, of the said Otterburne his right to the lands of Greinlaw; it was alleged for the defender, That he brooked Greinlaw as part and pertinent of his lands of Otterburne, within which it lay naturally and locally.
To this it was answered, That the Youngs of Otterburne, authors to this defender, were only kindly tenants for this roum to Sir John Ker of Litleden, whose right the Earl of Louthian having acquired, he disponed the same to this pursuer's father; and for proving this, the disposition made by the Youngs to Mr. William Moir of Greinlaw clearly evinces, for they dispone only their kindness of the said roum. 2do, It is offered to be proven that the Youngs did service to Litleden for the said roum as kindly tenants, by riding and otherwise, and that they were poinded for not riding when required.
Replied, Their disponing the kindliness of the roum non relevat, seeing an heritor may discharge and renounce his kindness. 2do, Their service of riding, and their being poinded for not riding, non relevat, unless they say it was for thir lands; whereas the defender offers him positive to prove that they were tenants to Litledean in other lands, and it was for that they rode and were poinded.
The Lords ordained both of them, before answer, to lead witnesses upon their several allegeances. And a commission being granted for that effect, the depositions of sundry witnesses for both parties were taken and reported. The Lords falling to examine the witnesses, there were many things objected against Grubet's witnesses: some of them common beggars, others living on the poor's box; one got a boll of meal from Grubet to depone; one at his death declared much sorrow, and craved leave to rectify the deposition he had made in that affair, and several of them were vitiated and blotted. The Lords found they would re-examine the witnesses yet on life, and any others that either party would adduce.
In this process there was a declinator given in against the advocate, because the pursuer and he had married two sisters. The Lords did not receive it; but it miserably cruciated the advocate to see his justice called in question. In 1678 Newbyth sat and voted in Mr. Patrick Home's cause, though he had married his brother's daughter. Infra, July 1676, No. 492, § 3.
