[1703/5/74]¹

Judicial Proceedings: decreet

The consideration of the cause pursued by [Thomas Fotheringham], laird of Powrie against [Patrick Gray], lord Gray being resumed, the decreet of the lords of session was read and the vote stated adhere or alter the decreet, carried adhere, and so decreet was pronounced in the said matter in manner underwritten:

Decreet the Lord Gray etc. against Fotheringham of Powrie

Anent the supplication given in and presented to his grace the high commissioner and honourable estates of parliament by David Fotheringham against Patrick, lord Gray and John Gray of Crichie, and thereafter continued and insisted in at the instance of Thomas Fotheringham, now of Powrie, as heir served and retoured to the said late David Fotheringham of Powrie, his father, against the said Patrick, lord Gray, John Gray of Crichie and [...] Gray, his lady, in manner underwritten, the which supplication makes mention that where the said David Fotheringham of Powrie, having purchased in 1666 from Patrick, lord Gray, the craig of Broughty, with the salmon fishing, size fish and other fishings belonging thereto, in the disposition thereof the said Lord Gray did oblige himself to warrant the same at all hands, in most ample form, and in the terms of the foresaid disposition he stands publicly infeft, and did for many years continue in possession of the said craig and fishings, and particularly of the size fish which was nine fish out of every boat with white fish passing by the said craig, but at last many of the fishers, who were tenants to the earl of Panmure, refused to pay the same, whereupon the petitioner was necessitated to raise a declarator of his right against the earl and his tenants, and he did raise a counter declarator of immunity against the petitioner, and at the same time the petitioner did duly intimate this distress to the present Lord Gray who represents the petitioner's author and, after litigious debate wherein the petitioner's infeftments and his authors were not sustained as a sufficient title to the said size fish, he was necessitated to propose prescription by offering to prove forty years' possession, and the earl and the petitioner were allowed a joint probation; and after deducing and advising thereof, the earl and his tenants were absolved from the petitioner's declarator and were declared free from payment of the said size fish, whereupon the petitioner was necessitated to intend an action of warrandice against the Lord Gray for payment of the value of the said size fish so evicted from him and, notwithstanding that the said size were expressly conveyed and also expressly warranted, yet the lords of session did think it fit to absolve the said Lord Gray, whereby the petitioner did judge himself harmed and did, before extracting, conform to the late act of parliament anent appeals, appeal to the parliament for remedy at law. And seeing his grace his majesty's high commissioner and their lordships would not summarily take a review of the foresaid sentence and decreet unless the said Lord Gray and others concerned were duly cited, therefore the petitioner humbly craved that his grace and their lordships would take the circumstances to their consideration and grant warrant to messengers and others to cite the said Lord Gray, John Gray of Crichie and all others concerned, as also the lord register and his deputes, to compear before them upon fifteen days to answer in the foresaid appeal, bringing with them the said decreet of the lords of council and session, with the whole minutes of process and interlocutors therein with the grounds and warrants thereof. Which supplication and desire thereof, having been considered by his majesty's high commissioner and estates of parliament, they gave and granted warrant to macers or messengers at arms to cite and summon the above-mentioned persons on fifteen days to compear before his majesty's high commissioner and estates of parliament, at Edinburgh, the [...] day of [...], 1695 to the effect above-mentioned, as an act made thereon of the date 16 May 1695 extant in process bears.

By virtue whereof the said Patrick, lord Gray and John Gray of Crichie were lawfully summoned to have compeared before the said high commissioner and honourable estates of parliament, at a certain day now bygone, to have heard and seen decreet and sentence given and pronounced in the said matter in manner and to the effect above-mentioned, as in the said act and executions thereof more fully is contained. Which act, being called after elapsing of the said day of compearing by a clerk and macer at the open gate of the parliament house, as use is, and seen and returned in common form, the said David Fotheringham of Powrie then compeared by Sir James Ogilvy (now lord high chancellor) and Mr George Alexander, advocates, his procurators, and the said Thomas Fotheringham now of Powrie, afterwards compearing by Mr Francis Grant, advocate, his procurator, who produced a contract of wadset between the right honourable William, master of Gray, heritable proprietor of the lands and others therein mentioned on the one part, and Mr James Kidd of Craigie on the other part, whereby for the sum of 12,000 merks then paid by the said Mr James Kidd to the said William, master of Gray, the said master of Gray sold, transferred and conveyed to the said Mr James Kidd, his heirs and assignees whatsoever heritably under reversion, all and entire the craig of Broughty with the castle, fortalice, salmon fishing, size fish and other fishings belonging thereto, lying within the sheriffdom of Forfar, and all and whole his town and lands of Northferry near Broughty, commonly called the forth of Broughty, with the teinds included, together with the fishing on the water of Tay, with the cuningar lands thereof belonging to the said lands of Northferry, and all and sundry the parts, pendicles, annexes, connexes, dependencies and pertinents thereof, feu ferms, feu mails and feu duties of £153 6s 8d Scots money foresaid, and a barrel of salmon fish due to him furth thereof yearly, lying within the lordship of Arbroath and sheriffdom foresaid, as the said contract of wadset containing a procuratory of resignation and several other clauses of the date 7 June 1655 at more length bears. Item, instrument of sasine in favour of the said Mr James Kidd of the foresaid craig of Broughty, size fishings and other fishings above-mentioned, proceeding upon a charter granted by the said William, master of Gray to the said Mr James Kidd in implementation of the foresaid contract of alienation and disposition, and containing a precept of sasine for infefting the said Mr James Kidd and his foresaids in the foresaid craig of Broughty, castle, fortalice, salmon fishing, size fishing and other fishings belonging thereto, and others therein specified, as the said instrument of sasine under the subscription of William Gray, sheriff clerk of Forfar, dated 6 July 1655, and duly registered conforming to the act of parliament in the register of sasines, reversions and others of that nature within the sheriffdom of Forfar upon 3 September 1655, by Thomas Weighton, clerk depute and keeper of the said register, bears. Item, instrument of sasine in favour of Patrick Kidd of the foresaid craig of Broughty, fortalice, salmon fishing, size fishing and other fishing thereto belonging, proceeding upon a charter and precept of sasine therein mentioned granted by the said Mr James Kidd, his father, as the said instrument of sasine under the subscription of William Gray, notary public, dated 22 January 1662 and registered, conforming to the act of parliament in the public register of sasines, reversion and renunciations within the said sheriffdom of Forfar upon 7 February 1662 by Mr Patrick Yeoman, clerk to and keeper of the said register, also bears. Item, a disposition by the said Patrick Kidd of Craigie, eldest lawful son and heir served and retoured to the said Mr James Kidd of Craigie, his father, and also assignee therein mentioned, to and in favour of David Fotheringham of Powrie, and his male heirs, which failing his heirs and assignees whatsoever, of all and entire the foresaid craig of Broughty, with the castle, tower, fortalice, salmon fishing, size fishing and other fishings belonging thereto, and all and entire the foresaid town and lands of Northferry near Broughty, commonly called the forth of Broughty, with the teinds included, together with the fishing on the water of Tay, with the cuningar lands thereof belonging to the said lands of Northferry, and with all and sundry the parts, pendicles, annexes, connexes, dependencies and pertinents thereof whatsoever, feu ferms, feu mails and feu duties and others therein specified, lying in manner foresaid, as the said disposition containing procuratory of resignation and precept of sasine and other clauses of the date 26 March 1666 at more length bears. Item, an instrument of sasine in favour of the said David Fotheringham of Powrie of the foresaid craig of Broughty, with the castle, tower, fortalice, salmon fishing, size fishings and other fishings belonging thereto, and of all and entire the said lands of Northferry and others above-mentioned following upon the foresaid disposition, as the said instrument of sasine, under the subscription of William Gray, notary public, dated 29 March 1666, and registered conforming to the act of parliament in the public register of sasines, reversions and others within the sheriffdom of Forfar upon 1 May 1666 by Mr Patrick Yeoman, clerk to and keeper of the said register. Item, disposition by Patrick, lord Gray to and in favour of David Fotheringham of Powrie whereby for the sum of 21,000 merks then paid by the said David Fotheringham to the said Patrick, lord Gray the said Patrick, lord Gray sells, transfers and conveys to and in favour of the said David Fotheringham of Powrie, all and entire the foresaid craig of Broughty, with the castle, tower, fortalice, salmon fishing, size fishing and others belonging thereto, lying as said is, and also all and entire the town and lands of Northferry and others above narrated, as the said disposition containing a procuratory of resignation and several other clauses of the date 7 February 1666 and [...] day of April the said year at more length bears. Item, a general retour whereby the said Thomas Fotheringham now of Powrie is heir served and retoured in general to the said David Fotheringham of Powrie, his father, dated the [...] day of [...] 1696. Item, an instrument of sasine in favour of the said Thomas Fotheringham of Powrie of the foresaid craig of Broughty, salmon fishing, size fishing and other fishing thereto belonging and containing several other lands and others therein narrated, which sasine proceeded upon a precept furth of the chancellery for infefting the said Thomas Fotheringham as heir served and retoured to his said father, as the said instrument of sasine under the subscription of Mr John Lyon of the date 13 May 1696 and duly registered, conforming to the act of parliament, in the new general register of sasines and reversions kept at Edinburgh upon 27 June 1696 by Sir John Foulis, clerk to and keeper of the said register, more fully bears. Item, two separate instruments and protests for remedy at law taken by the said David Fotheringham of Powrie bearing that in presence of the notary after-named and witnesses therein inserted, and also in the presence of the deceased James [Dalrymple], viscount of Stair, then lord president of the session, and remaining lords of council and session then convened and sitting in the inner house of the session house of Edinburgh, and also in the presence of the now deceased Sir Alexander Gibson of Adiston and Alexander Gibson, his son, two of the principal clerks of the session and clerk to the process above and therein mentioned, compeared personally the said David Fotheringham of Powrie, and there alleged to the said lord president and remaining lords of council and session that he found himself grieved by the interlocutor pronounced by their lordships upon 11 February then instant in the action after-mentioned pursued before them at the instance of the said David Fotheringham, and therefore the said David Fotheringham exhibited and produced in the presence of the said lords a protestation subscribed by him, narrating that he found himself grieved by their interlocutor of the date 11 February then instant, in the action of warrandice pursued at his instance against my Lord Gray, whereby the lords found that by the disposition the size fish are made over only in so far as the conveyor had right thereto, and therefore found that the eviction does not make the defender liable for repayment of the size fish and, therefore, protested for remedy at law to king and parliament, dated 13 February 1692, which protestation the said David Fotheringham gave in and delivered to the said Sir Alexander Gibson, clerk, in presence of the said lords of council and session and conforming thereto protested for remedy at law to the king and parliament against the said sentence and interlocutor above-mentioned, and craved that the said protest might be recorded and thereupon took instruments, as the said two instruments and protests both dated 13 February 1692, under the subscription of Robert Carstairs, notary public, more fully bears. And the foresaid action, having been moved in plain parliament on 2 July 1695, the lord high commissioner and estates of parliament declared they would hear both parties' procurators on the above action in their own presence on Saturday then next, and the said David Fotheringham, having died before any further procedure therein, the said Thomas Fotheringham now of Powrie, as heir foresaid, produced another instrument taken by him against the Lord Gray, John Gray of Crichie and his lady, bearing Mr William Ramsay in Fotheringham, as procurator for the said laird of Powrie, to have passed to the personal presence of John Gray of Crichie and mentioning that the said laird of Powrie was summoned by virtue of summons of poinding the ground raised at the instance of Andrew Burnett, second lawful son of the deceased Thomas Burnett of Kemnay (designed in the heritable bond and infeftment therein mentioned writer in Edinburgh) as having right by adjudication thereto in manner therein specified, with which the castle of Broughty and salmon fishing thereof is alleged to be affected, which was sold to the deceased David Fotheringham of Powrie by Patrick, lord Gray and the deceased Barbara Murray, his lady, to compear before the lords of council and session at a certain day therein mentioned to answer, at the instance of the said pursuer in manner libelled, and there the said procurator made intimation of the said summons and stress to the said John Gray personally, and desired to have access to the said Patrick, lord Gray and to Dame Marjory Gray, his only daughter and heiress, spouse to the said John Gray, to have made intimation thereof to them; and the said John Gray answered that he could not have access to them by reason of their indisposition, but he would accept of the said intimation made to him to be as valid as if he had met with them both personally for that effect, and there the said procurator required them to concur with and assist the said Thomas Fotheringham of Powrie in defending the said Andrew Burnett anent the said action and pursuit, and protested for all cost, harm, damage and expenses the said laird of Powrie might sustain therethrough and for all other remedy at law, as the said instrument under the hand of James Gourlay, notary public, dated 15 January 1698, more fully bears.

Thereafter the said Thomas Fotheringham now of Powrie gave in and presented to the high commissioner and estates of parliament a petition showing that where the petitioner's deceased father, having a process depending before the commissioner and the honourable estates of parliament for reviewing a decreet pronounced by the lords of session against him at the instance of the Lord Gray, which came to be called in 1695 but could not in that session of parliament be brought to a period, and his father having died before the next session there was no further progress made therein, and now the petitioner, being served heir to his said father, he is of intention to prosecute the said action, and seeing at the calling it is likely it may be objected by the Lord Gray that the affair is sleeping, therefore, humbly craving his grace and honourable estates of parliament would be pleased to grant warrant for citing the said Lord Gray and others formerly cited to compear before them upon six days to answer to the former libel, and to ordain the Lord Gray to bring the decreet quarrelled, and such of the grounds thereof as he has, and to ordain the clerks of session to produce such grounds as they have. Which petition and desire thereof, being read in presence of and considered by the high commissioner and the estates of parliament, they gave and granted warrant to macers or messengers to cite the above-mentioned Lord Gray and others formerly cited to compear before the said commissioner and estates of parliament on six days' warning to the effect above-written, as an act extracted thereupon of the date 27 July 1698 extant in process bears.

By virtue whereof, the said Patrick, lord Gray, John Gray of Crichie and [...] Gray, his lady, and also Mr Alexander Gibson, one of the clerks of council and session and then depute clerk to the lord register and clerk to the foresaid process, were all summoned to compear before the said high commissioner and estates of parliament at a certain day now bygone, in manner and to the effect above-mentioned. After elapsing of which day of compearing, the foresaid act being called by a macer and clerk at the open gate of the parliament house, as use is, the said Thomas Fotheringham of Powrie compearing via the said Mr George Alexander, advocate, his procurator, and the said Patrick, lord Gray and John Gray of Crichie and his lady compearing via Sir David Dalrymple and Mr Charles Gray, advocates, their procurators, the said Thomas Fotheringham of Powrie and his said procurators thereafter produced his said general retour as heir to his father and sasine thereon of the date, tenor and contents above-mentioned. Item, an instrument of intimation by Mr William Ramsay, as procurator specially constituted by the said laird of Powrie to John Gray of Crichie, whereby the said Mr William Ramsay, as procurator foresaid, made intimation to the said John Gray personally that the laird of Powrie was to insist in that action of reduction before the parliament of that decreet obtained by Patrick, lord Gray, the said John Gray and [...] Gray, his spouse, before the lords of council and session against him, as the same instrument of intimation dated 16 May 1700, under the hands of James Gourlay, notary public, more fully bears. Item, a procuratory granted by the said Thomas Fotheringham of Powrie in favour of George Clerk, his servant, nominating and appointing him his lawful procurator to the effect underwritten, giving, granting and committing to him his full power, warrant and commission for him, and in his name, to pass to the personal presence of Patrick, lord Gray, John Gray of Crichie and [...] Gray, his lady, and to their dwelling places and there make intimation to the foresaid persons that the said laird of Powrie was to insist in his process of warrandice at his instance against them before the parliament then sitting at Edinburgh, with power to his said procurator to take instruments thereon in the hands of a notary public, and to protest that the persons above-named may not pretend ignorance of these matters, as the said procuratory dated 17 February 1700 more fully bears. Item, an instrument of intimation taken by the said George as procurator foresaid for the said laird of Powrie against the said Lord Gray, John Gray of Crichie and his spouse, intimating to them that the said Thomas Fotheringham of Powrie was to insist in the foresaid process of warrandice pursued at his instance against them, in manner more fully mentioned therein and in the above procuratory, and protesting that they might not pretend ignorance of these matters, as in the same, under the hand of Thomas Crichton, notary public, of the date of the foresaid procuratory more fully is contained. And further produced, for satisfying the production in the foresaid action of reduction, the foresaid decreet craved to be reduced at the instance of the said Patrick, lord Gray against the deceased David Fotheringham of Powrie before the lords of council and session, whereby the said lords found that, by the foresaid disposition produced, the size fish therein mentioned is made over only by the said Patrick, lord Gray, conveyor thereof, in so far only as he had right thereto, and therefore found that the eviction does not make the said Patrick, lord Gray, defender, liable for repayment of the value of the size fishes libelled, and absolved the said Patrick, lord Gray from the whole points and articles of the said summons and desire of the pursuer's procurators craved thereby, and discerned and declared the said defender quit thereof and free therefrom now and in all time coming, as the said decreet of the date 11 February 1692 bears. And also produced another instrument of intimation taken by Mr George Pitcairn, commissary of Dunkeld, as procurator and attorney for and in name and behalf of the said laird of Powrie against Sir James Stewart of Goodtrees, his majesty's advocate, Mr David Dalrymple and Mr Charles Gray, advocates, procurators for Patrick, lord Gray and John Gray of Crichie, making intimation to each of them that the said Thomas Fotheringham of Powrie had intimated to the said Lord Gray and John Gray of Crichie by a notary and witnesses that he was to insist that session of parliament in the process above-narrated, and which intimation, with the whole process already seen and returned before the parliament with the decreet absolvitor at the instance of the said Lord Gray against the said David Fotheringham of Powrie, father to the said Thomas, were all produced and lying in the hands of Alexander Gibson of Durie, clerk to the process and, therefore, if the said lord advocate, Mr David Dalrymple or Mr Charles Gray, advocates, as procurators foresaid for the said Lord Gray or John Gray of Crichie, desired inspection of the said process or any part thereof, that they might apply to the said Alexander Gibson who would give them inspection thereof in the clerks' hands that, when the same came to be called, they might pretend no ignorance nor plead any excuse, as the same under the hand of David Hutchison, notary public, dated 23 December 1700 at more length purports. And together also with a procuratory by the said Thomas Fotheringham of Powrie nominating and appointing John Crockett, his servant, his lawful procurator and giving, granting and committing to him his full power and commission to pass to the personal presence of the said Lord Gray and John Gray of Crichie and failing thereof to their dwelling places, and there to make intimation in manner and to the effect therein specified and mentioned in the foresaid procuratory granted by him to the said George Clerk, as the same dated 26 April 1703 more fully bears. Item, an instrument of intimation by the said John Crockett above-specified for and in behalf of the said Thomas Fotheringham, intimating to Patrick, lord Gray and John Gray of Crichie that the said Thomas Fotheringham was to insist in the foresaid process in manner and at the time therein specified, as the same under the hand of James Gourlay, notary public, of the date of the foresaid procuratory, more fully bears. Item, a procuratory by the said Thomas Fotheringham of Powrie in favour of David Craig, writer in Edinburgh, nominating and appointing him his procurator and giving, granting and committing to him full power, warrant and commission to pass to the personal presence of Mr Charles Gray, advocate for the said Lord Gray and John Gray of Crichie, and failing thereof to their dwelling places, and there to make intimation that he was to insist in the above process before the parliament which met at Edinburgh, 6 May then instant, with power to his said procurator to do all things necessary and requisite thereupon in manner therein mentioned, dated 8 May 1703, together with an instrument of intimation taken by the said David Craig as procurator for and in name and behalf of the said Thomas Fotheringham against the said Mr Charles Gray, advocate, intimating to him as advocate foresaid that the said Thomas Fotheringham of Powrie was to insist in the above-mentioned process, in manner at the time therein specified, as the same under the hand of John Guthrie, notary public, of the date of the above procuratory more fully bears. Which action, having been thereafter several times moved in plain parliament, the 14th instant was ordained and appointed to both parties' procurators to be in readiness to debate the cause in plain parliament, and accordingly the same action and cause, having been called as use is from the throne and at the open gate of the parliament house by a clerk and macer, both parties compearing by their respective procurators above-named, the said Mr George Alexander and Mr Francis Grant, advocates, procurators foresaid for the said Thomas Fotheringham of Powrie, resumed the matter of fact that the Lord Gray, having been in possession of the craig of Broughty and the castle built on it, together with a salmon fishing adjacent thereto, and a privilege of exacting nine fish out of every white fish boat of the Northferry every day that they passed by the castle for fishing, the last was called the size-fish, which, being considerable both in respect of the homage implied in it and profit arising from it, Kidd of Craigie did take a wadset of the craig and fishing in 1655, which bears size fish both in the dispositive part, precept of sasine and sasine following thereon, with absolute warrandice relative thereto, the deceased David Fotheringham of Powrie, the pursuer's father, finding that not only the Lord Gray, but likewise his said wadsetter did peaceably enjoy the said size fish, he is prevailed to buy the interest, and that the Lord Gray's disposition to him bears the receipt of 21,000 merks as the full price, and values not only of the lands but likewise of the fishings etc. and conveys the craig of Broughty with the castle, salmon fishing, size fish and other fishings belonging thereto, as also the town and land called the firth of Broughty, with the cuningar lands thereof belonging thereto, in which he obliges himself to infeft, which infeftment and either of them shall bear absolute warrandice. Also, he warrants against all evictions and all inconveniences whatsoever, and assigns to the wadsetters reversion dated in 1666, by virtue whereof Powrie continued in possession until the earl of Panmure, heritor of the boats liable in size fish, did obtain declarator of immunity, to which distress Powrie did call the Lord Gray for defending against it and, upon eviction, pursued an action of recourse against the Lord Gray upon the warrandice of the disposition for payment of the value of the size fish, but the lords of session in 1692 did acquit him in these precise terms: the lords find that by the disposition the size fish is made over only in so far as the conveyor had right thereto and, therefore, find the eviction does not make the defender liable for repayment of the value of the said fish and therefore is acquitted.

Whereupon the late Powrie protested for remedy at law and raised a reduction of the said interlocutor and decreet following thereon before the parliament founded on the protestation for remedy at law and other grounds and reasons of reduction, but nothing having followed on the reduction in the deceased Powrie's time, this Powrie, as heir to his father, raised and revived the foresaid reduction the last session of parliament and, having then insisted therein, there was nothing proposed for the Lord Gray but dilators, but these being now over the precise state of the case stands thus. Firstly, that the interlocutor is not so much the sentiment of the lords as the fault of the clerk, who has not certainly read the several parts of this disposition and other writs which clears that the size fish are simply conveyed and not only in so far as the conveyor had right thereto, on which ground only the interlocutor is founded and this is manifest in the sequel words of these writs from the meaning of them from the iniquities that others would be brought on Powrie, and from the absurd consequences to the lieges which would follow if it were not so. To which it was answered by the said Mr Charles Gray, advocate, procurator foresaid for the said Lord Gray, that the protestation for remedy at law is altogether groundless and vexatious, and the lords of session's sentence is most just and conforms to the precise principles of law, for there can no eviction arise upon the earl of Panmure's declarator of immunity because the defender did not sell the size fish as payable out of the boats belonging to the earl of Panmure, nor did he make over the size fish of a certain number of boats, nor yet a definite number out of each boat, but only in general he sold the lands with the size fish belonging thereto, so that now, the lords having found the earl of Panmure's lands free of that servitude, the same does not fall under the defender's disposition and the pursuer cannot allege on any eviction so long as he does possess any size fish because a disposition of size fish belonging to lands cannot oblige the conveyor for all that the acquirer shall claim as belonging thereto, but only for what does truly and justly belong to the same, no more than a disposition bearing in the general clause with common pasturage etc. does oblige the conveyor had no common pasturage or though the heritor of a particular commonty, moss or muir obtained a declarator that the acquirer had not a servitude upon that commonty. Whereunto, it was replied by the said Mr Francis Grant, procurator foresaid for the said Thomas Fotheringham, that it is clear and evident that the size fish are expressly made over in the same manner as the salmon fishing and the wadsetter, who is likewise Powrie's author, has likewise the size fish, both in his dispositive clause, precept and instrument of sasine, as said is, and Powrie's sasine on the Lord Gray's right has symbols for the fishings and the Lord Gray's disposition to Powrie bears the price to be the full value of the fishings thereafter mentioned, which is the size fish as well as the salmon. This disposition bears not only the size fish in special by the Lord Gray as proprietor, but likewise all other right and interest which he had thereto, or to the other subject conveyed, which shows a manifest distinction between an absolute disposition of what is specially expressed and a disposition only of all right the conveyor has, for the warrandice is not generally of the infeftment (which yet would suffice since there were infeftments of the size fish) but either of them, and so it is that there were infeftments of the fishing as well as of the land and, therefore, the warrandice extends to it and appears designedly calculated for it. Besides which, there being some consenters to this disposition, these consenters warrant only from fact and deed which indeed implies no more than the communication only of what right they had, but the Lord Gray's warrandice as principal conveyor is absolute, which demonstrates the difference and the opposite point of view is more correct for it cannot be imagined Powrie would have given his money for nothing for so much, or can it be dreamed that if the question had been fairly stated then by the Lord Gray to Powrie, Sir, are you willing to give so much price even though three or four or five hundred merks by year be evicted from them on the account of the size fish so that you will lose the proportional stock thereof, that he would have been so tame as to have acquiesced. Is it not absurd that when a mill is conveyed with the astricted multures of other men's lands, or a piece of land is conveyed with a particular moss or grazing without which it cannot subsist, or a tenement is conveyed with the right of an annualrent, feu duty or teinds, all which are kinds of servitude upon another and these often of greater value than the subject first named itself, that these, being evicted, the purchaser should be cheated of the price which he gave out upon the faith of the conveyor's right. In a word the Lord Gray warrants against all evictions, but this was an eviction against all inconveniences and this is an inconvenience arising from the defect of the conveyor's title against all perils to the fishings in the plural number, and not the fishing of salmon only but the size fish is such, the loss of which is greater than that of salmon in respect that though the rent should differ, yet this is overbalanced by the certainty of the one above the other and, therefore, since all the Lord Gray's arguments for eliding recourse on eviction of the one would likewise exclude it on eviction of the other, the price being paid equally for both, the word being dispositive equally of both, and all the lieges being concerned in the precedent as to both, it is plain that by the words, meaning and common sense of parties the size fish were simply conveyed and not only in so far as the conveyor had right thereto.

Whereunto, it was duplied by the said Sir David Dalrymple and Mr Charles Gray, advocates, procurators foresaid for the said Lord Gray, that he the defender cannot be liable at all in any action of eviction for size fish supposing the whole adjacent heritors as well as the earl of Panmure were declared free thereof, which he does urge from the following grounds. Firstly, the dispositive clause bearing only the craig of Broughty with the size fish therein belonging, and there being no more mention of the size fish in the procuratory of resignation or in the clause of warrandice which does only oblige to warrant the infeftments of the lands and others above conveyed, in general such a disposition does only import a conveying of the lands with the pertinents, in the same way as the conveyor had them and, if it were not so, conveyors would be miserably ensnared by the general and ample clauses in all dispositions, which in style does bear on mines, quarries etc. with all parts and pertinents belonging thereto, which general clause was never pretended to infer any oblidgement against the conveyor that there was any servitude of common pasturage, or any of the particulars above-mentioned belonging to the lands made over. But the lands which are only considered in the purchase being conveyed and warranted, so that, if any of these particulars specially or generally expressed be found to belong as part and pertinent thereof, they are conveyed but not all warranted because the style bears that they are only conveyed in so far as they do belong to or are part and pertinent of the lands for a disposition of size fish, in so far as they do belong to the lands, have the same import and signification in law. Secondly, where it is designed that these particulars should be specially conveyed and warranted, it is so expressed both in the dispositive clause and warrandice as, if it had been designed to warrant the size fish, the same would have been narrated both as to the quantity payable by every boat and as to the subject liable to that servitude or the praedium serviens namely, that the same were payable out of every boat belonging to the possessors of the lands belonging to the earl of Panmure, and the warrandice would have borne that there was such a quantity payable out of such boats by pronouncement which would have founded a clear eviction. But such a general clause can no more found recourse than the receiver of a disposition of lands with common pasturage or the like could return if no such pasturage were found. Thirdly, the disposition does narrate the several rights of the lands which were stated in the conveyor's person namely, three or four several apprisings with a gift of recognition, none of which apprisings or the charter of recognition or any of the former and ancient rights of these lands did in the least mention the said size fish otherwise than by general term of part and pertinent, so that the conveyor, having narrated his special rights² to the lands, and these special rights never once mentioning the size fish, it cannot be imagined that any man of common reason would have designed to have subjected himself to a warrandice thereof by such a general clause of size fish thereunto belonging. Fourthly, these fish were never in any rental of the estate nor could the value thereof, which was various and uncertain, be liquid, but that which was sold was a constant, fixed rental amounting to 1,200 merks of money and a hogs-head of wine yearly, together with 230 merks of feu duty and a barrel of salmon, all which were sold for 20,000 merks of price.

To which it was triplied by the said Mr Francis Grant: firstly, the words thereto belonging must, by all the rules of construction, be referred and conjoined to the the next antecedent, namely the other fishings, and it is plainly obvious that the size fish is made over expressly, even as expressly as the salmon fishing, and thereby was understood to be conveyed by the Lord Gray as proprietor thereof whereby, if he had no right to either of them, he incurred the warrandice. But as to other fishings belonging to Broughty, such as flucks, truits etc., if any were they were only conveyed as part and pertinent whereof the purchaser took his hazard. Secondly, as an evidence hereof suppose the disposition had run only of the craig of Broughty size fish and other fish belonging thereto, without mention of salmon or any other subject. Is it possible that the size fish being evicted Powrie should have nothing for his money but a barren rock? Or that, in the parallel case, a person who bought a mill with the astricted multures of particular lands, or a house with a particular grassing or moss, should have the walls of the house and no more if these emoluments belonging to it were evicted? Thirdly, it is not possible in reason, law or common sense that the size fish are made over only as a common pertinent belonging to the craig of Broughty, because, in the first place, they are specially mentioned in the disposition and in the next place the sasine has special symbols for fishings, and in the third place this is clear by the size fish being so distinct from common pertinent (for which usually there is no separate infeftment) in the wadsetters' rights, and in the fourth place the lands called the firth of Broughty are conveyed in the same writ as the cuningar lands belonging thereto, but it will not be said if the cuningar lands were evicted (though conveyed as belonging to the firth of Broughty as said is) there could be no recourse, and hence, in the last place, there is a great difference between pertinents expressed, for a pertinent is so far under the bargainer's consideration as to be special expressed becomes a part of the subject conveyed and consequently under the warrandice in case of eviction.

Whereunto it was quadruplied by the said Sir David Dalrymple and Mr Charles Gray that the size fish are only conveyed as part and pertinent and consequence of the lands, and not as a positive right, because the same are not all circumstantiated as to the quality nor as to the praedium serviens, and whereas it is alleged that there is a parallel between the salmon fishing which is the bulk of the subject conveyed and the size fish, it was answered it is an absolute mistake and the disparity between the two appears in the following particulars. Firstly, the salmon fishing is specially narrated in all the rights mentioned in the disposition, and was always a great part of the rental. Secondly, the salmon fishing is a royal matter and does not fall under the general designation of part and pertinent, but must be particularly conveyed and here specially contained in the rights conveyed, and besides the general clause of salmon fishing there is subjoined a particular disposition of the fishings in the water of Tay so that the salmon fishing is more amply and specially made over than the size fish. Thirdly, the salmon fishing is a positive right belonging either to the king or to the heritor of the alveus³or channel of the water where the fishes are taken, and so the benefit thereof is a casualty arising out of the heritor's property, whereas, the size fish is no proper separate right but a servitude upon another heritor's tenement, and such servitudes are never understood to be specially conveyed or warranted unless it be so expressed and so does never fall under an action of recourse upon eviction. Nor does eviction properly take place upon a declarator of immunity, for the definition of eviction in law is a recovery of our possession from an adversary, and a declarator of immunity cannot fall under that definition, not being the recovering of any positive right to the heritor but only the free enjoyment of his own. Fourthly, the law is very plain in the case of all servitudes that they do not fall under eviction unless it be so particularly expressed, as if a man should sell lands that were subject to a servitude and should pursue for eviction of that servitude he would not be liable unless he had conveyed the lands tanquam optimum maximum and were specially obliged in case of eviction Leg: 59, F: de contrahen: emption: and more expressly Leg: penult: F: de evictionibus, and it was so decided upon 21 June 1672 Sandilands versus the earl of Haddington, where it was found that lands made over with absolute warrandice did found no recourse, albeit they were subjected to a thirlage. Fifthly, whatever might be pleaded to found a recourse if lands conveyed were found burdened with a servitude, yet there is far less to be said for obliging the conveyor to the eviction of a servitude upon other men's lands, for the law states a clear difference in these cases Leg: 90 and Leg: 169, F: de verborum significatione qui uti optimae maximaeque sunt aedes tradit non hoc dicit servitutem illis deberi sed illud solum aedes ipsas liberas esse hoc est nulli servire. And, as it has been found that a clause of absolute warrandice of the lands and pertinents does not import that the same are free of servitudes, or that the disposition is tanquam optimum maximum does only import that no servitude affects the same, but that it imports and infers no oblidgement or warrandice that there is any servitude due to the same out of other men's lands, and the reason is clear, because actions of eviction do only arise upon a positive burden that is found to affect the subject conveyed, whereas a declarator of immunity of a neighbouring tenement is no positive burden but a freedom. It was further and separately alleged for the defender that he cannot be liable for the eviction because it is a principle in law, that exceptions ex persona emptoris objectae si obstant venditor de evictione ei non tenetur Leg: 27, F: de evictionibus and here the earl of Panmure's immunity was founded upon a personal objection against the pursuer, namely that the pursuer, who was heritor of the craig of Broughty, did purchase a proper wadset of the lands now belonging to the earl, so that the pursuer, being heritor of both tenements, dominantis et servientis, res sua nemini servit and the years that the pursuer was heritor of both were expressly found by the lords to be deducted from the years of prescription, so that, albeit the pursuer proved fifty years' possession, yet subtracting seven years' minority and four years of the pursuer's possession of the wadset lands, there remains only thirty nine years, whereupon the earl's lands were declared free, whereas if these wadset lands had not been possessed by the pursuer the prescription had run and was complete.

From which the defender argues, firstly, that the objection was personal against the pursuer and that the immunity is personal to the earl as to his proper lands, whereas the other heritors, who have no minority or personal objection against the pursuer, are still subject to the objection.⁴ Secondly, and separately the earl's immunity did arise from the pursuer's fault and mismanagement, as appears from the particulars following: firstly, the pursuer did alter the method of exaction and, whereas the dues were formerly received at Broughty castle, he did unwarrantably exact the same at the cross of Dundee and thereby created disturbance to the market and offence to the persons liable and, by changing the manner of possession, did weaken the right. Secondly, the pursuer did grossly mismanage the process in so far as there were several old witnesses who would have testified to more than sixty years' possession if they had been interrogated, and one did actually testify upon the same, but the pursuer did neglect to examine the other old witnesses thereon, albeit he knew both his own possession and the earl's minority and albeit the old concurring witnesses testified in general terms that the possession had been since his memory and he was aged eighty two. Yet the lords found that the memory of man in general is understood to be forty or fifty years, and that the said particular witness, having testified specially on fifty years, the generality of his deposition since his memory was not to be extended further. Whereupon the pursuer gave in a bill acknowledging his omission in not offering a special interrogator to that witness how many years he did remember that possession, and that, if he had been specially interrogated, he would have concurred with the other two witnesses who testified upon sixty years and so completed the prescription and, therefore, craved that his deposition might be conjoined, which was refused, whereby it appears that the pursuer's omission to interrogate the witness was the direct occasion of the decreet of immunity, and he did not so much as desire the witness to be re-examined for clearing his former deposition, and in this case the size fish is not warranted at all for they are neither mentioned in the oblidgement to infeft procuratory of resignation nor clause of warrandice, for the procuratory of resignation does only resign the lands and fishings and the oblidgement to infeft is in the same terms, and the clause of warrandice warrants only the lands and fishings, but mentions not the size fish, which is of a very different nature from fishings which is a positive right, whereas size fish is but a burden or servitude on another man's property which does not pass by infeftment nor is capable thereof, there being no symbol in the procuratory of sasine of the size fish but only for the lands and fishings. And lastly, protestations for remedy at law ought not to be allowed for every trivial case but where there is palpable and manifest injustice, which cannot be alleged in this case, the decision being on a clear point of law decided according to the points of law and the constant tenor of decisions in such cases.

To which it was quintuplied by the said Mr Francis Grant: firstly, the defender, having warranted that the right was sufficient at the time of the disposition, he cannot quarrel the eviction upon any posterior unforeseen event that could found a defence against the prescription, for if the right had been constituted at the time of the disposition there had been no need of any posterior possession to complete prescription. Secondly, the plea being intimated to the defender he ought to have compeared and defended, and can never quarrel any mismanagement. Thirdly, the warrandice in the Lord Gray's disposition to Powrie does express the size fish in so far as in the first place it warrants the infeftment or either of them, but so it is that the size fish are in the infeftments and, in the next place, the obligation to infeft in the fishing precedes and then follows the warrandice relative thereto, but so it is that the word fishings is in the plural number and, therefore, must include all the fishings before expressed in the next place as an evidence hereof. If it were otherwise, there could be no recourse upon eviction even of the salmon fishing which the Lord Gray himself acknowledges to be absurd. And, in the fourth place, there needed no clause of warrandice since the disposition bears expressly that the price was paid as the full value of the size fish and it is plain that from the nature of the matter warrandice is always competent where the disposition is for an onerous cause.

The consideration and advising of which debate, being upon the said 14th instant delayed until the next sederunt of parliament, and the said high commissioner and estates of parliament having this day again met and the consideration of the foresaid action and cause being again moved and the same resumed to them, and they having heard the foresaid libel, whole debate and advised the same with the foresaid contract of wadset between the said Lord Gray and Mr James Kidd of Craigie, and the foresaid disposition granted by the said Lord Gray to the said David Fotheringham of Powrie and whole other writs above-mentioned produced by the said pursuer and alleged on hereafter with the foresaid decreet pronounced by the said lords of council and session, and they, being all upon this instant day heard, seen and considered by her majesty's high commissioner and estates of parliament, and being therewith well and ripely advised, they adhered and hereby adhere to the foresaid decreet absolvitor pronounced by the said lords of council and session in favour of the said Patrick, lord Gray, defender, against the said now deceased David Fotheringham of Powrie of the date 11 February 1692 and, therefore, absolve and hereby absolve the said Lord Gray, defender, from the foresaid appeal for remedy at law made by the said deceased David Fotheringham of Powrie to the parliament from the said lords of session against the foresaid decreet absolvitor pronounced by them, as said is, and also from the foresaid process and action of reduction of the said decreet absolvitor raised and intended before the said parliament at the instance of the said David Fotheringham of Powrie, and thereafter insisted in by the said Thomas Fotheringham now of Powrie against the said Patrick, lord Gray, defender, in manner above-mentioned unconditionally, and discern and declare the said Patrick, lord Gray, defender, quit thereof and free therefrom now and in all time coming.