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The master of Balmerino, as baron of Restalrig, pursues a reduction and improbation against the Town of Edinburgh, of their right to the mills on the Water of Leith. Alleged, The active title is not valid to force a production, being only a charter and sasine flowing upon a gift of recognition from the King, and the gift never yet declared. Answered, No necessity of a declarator, because he was in peaceable possession. 2do, It contained a novodamus. Replied, If the recognition should be found not incurred, the novodamus would fall in consequence; and one might as well pursue a special declarator of escheat without first obtaining a general. The Lords refused to sustain process on this title.
Fol. Dic. v. 1. p. 229. Fountainhall, v. 2. p. 69.
