Information 1766

September 27. 1766. I n f o r m a t i o n F o r A Lady Clementina Fleming and Charles Elphinston, Esq; her husband, A G A I N S T Robert Fleming, son of John Fleming in Mains of Cumbernauld, deceased, and John Grant younger of Rothmaise, his trustee. T The question betwixt these parties, which the Lord Pitfour Ordinary has taken to report, is occasioned by an attempt lately made on the part of the said Robert Fleming, in the character of great-grand- son and heir of the deceased John Fleming of Board, to evict from Lady Clementina Fleming the lands of Board and o thers, which have been possessed by her, her predecessors, or others deriving right from them, as their undoubted proper ty, for some centuries back. And the question at issue is, the validity of a general service sounded on by Robert Fle­ ming, which he has got expede in his own favour, under the above character, and which now stands challenged by reduc­ tion at Lady Clementina’s instance; wherein, if she prevails, it will be decisive of the whole cause; although, even supposi ng Robert Fleming was a true descendent of Board, La­ dy Clementina is advised, that she has other defences that would be sufficient to exclude his claim. A Before Before entering upon the arguments pleaded hinc inde before the Lord Ordinary, touching the merits of the service in que- stion, it is proper to premise, that, in 1758, the said Robert Fleming, and John Grant his trustee, thought fit to bring a re­ duction and improbation, upon the title of an adjudication deduced against himself on a trust-bond, in order to set aside Lady Clementina Fleming’s rights to the lands of Board and others. And as very great stress has been laid, in arguing the present question, upon Lady Clementina, the defender, her conduct in that action, it is necessary to lay before the court an exact summary of the proceedings therein. The first calling was of this date, when the 12th of No­ vember then next was asigned the defender for satisfying the production. And acts for first and second terms having been extracted, and the defender ordained to fatisfy the production in ten days, there was produced an interest for her, viz. her fa­ ther John Earl of Wigton’s special retour and insestment in the barony of Lenzie, of which the lands of Board are a part, in 16 8 1, with which Lady Clementina connected her own titles, and put it to her opponent to confess or deny that her predeces sors and she, by themselves or their vassals, had held the uninterr upted possesio n of the lands in question from that period. And this was pleaded to be sufficient to exclude the pursuer. A fter this production, a litigation ensued upon this point, Whether the interest produced for Lady Clementina Fleming, with a proof of possession, which, if denied, she offered to bring, was sufficient to exclude the pursuer’s title? And mi­ nutes being made up, the Lord Edgefield Ordinary, by inter­ locutor, of this date, found the defence of prescription found­ ed on the special retour of John Earl of Wigton, and forty years uninterrupted possesio n thereon, relevant to exclude the pursuer’s title; and allowed the defender to prove such poses io n in habile terms, and the pursuers to prove interrup­ tions. But Robert Fleming and his trustee having reclaimed a- gainst %gainst this judgment, answers were made for Lady Clementi­ na, and replies for Robert Fleming; and the matter lay over until it came to be advised in course of the rolls, of this date; when the Lords, having advised the petition, with the an­ swers and replies, found it not competent for the defender, i. e. Lady Clementina, in hoc stau, to demand a proof of poss ession, before making a full production. In consequence of this judgment, a full production was made on the part of Lady Clementina, with which avisan dum was made, and certification passed contra non producta. And although Lady Clementina might have rested her de­ fence, either, 1st, upon her prescriptive right above mention­ ed, to which she could have then competently resorted; or, 2dly, upon the consensual titles to the lands in question in fa­ vour of her predecessors, which made a part of her last pro­ duction, and which she has taken the liberty to subjoin to this information; yet as, upon examining the grounds and warrants of Robert Fleming’s general service, it appeared to be extremely exceptionable, and particularly to have proceed­ ed without any proper evidence of the propinquity; it there­ fore occurred to be the most expeditious method of silencing his pretensions, to strike at the root and foundation of them. And accordingly, a reduction of his service was raised and execute at Lady Clementina’s instance; which was afterwards remitted to and conjoined with Robert Fleming’s reduction and improbation. These processes having been remitted to Lord Pitfour, in place of Lord Edgefield, Lady Clementina insisted in her re­ duction of Robert Fleming’s service. But Mr Fleming was pleased to dispute his being obliged to produce the grounds and warrants of the service; and he further insisted, that be­ fore any procedure, Lady Clementina should be ordained to produce certain writings condescended on by him. But both of these pleas were over-ruled by the Lord Ordinary, who pronounced the following interlocutor. “ Finds, That Robert T,.h\V 0 • bert Fleming is obliged to take a term to satisfy the pro­ duction in the process of reduction brought against him at the instance of Lady Clementina Fleming and her husband: and finds, That it is not sufficient for the said Robert Fle­ ming, to produce his service, but that he must also produce the grounds and warrants thereof. And with respect to the condescendence of writings antecedent to the year 1578, which the pursuer Mr Fleming insists for production against the defenders, finds the defenders are not obliged to produce the same, in order to answer the conclusion of this process of reduction and improbation, which is already closed by a de­ creet of certification, extracted by the pursuer, so as these writings cannot hereafter militate against him. And as to the production craved by the pursuer in modum probationis, su- persedes the consideration thereof until the pursuer insists in his reasons of reduction, whereby it may appear, whether he is intitled to sound upon these ancient writings, in pro­ bation of these reasons, or not.” And this judgment was, upon a reclaiming petition preferred by Robert Fleming, and answers, adhered to by the court; and a warrant granted to the clerk of the bailie-court of the Canongate, to transmit the grounds and warrants of Robert Fleming's service to this pro- ces.: In consequence of the foresaid warrant, the original claim, and proceedings thereon, having been lodged in process, parties were heard before the Lord Ordinary; and his Lordship appe ared to have no difficulty about sustaining the exceptions urged for Lady Clementina against the validity of the service question. But the defender having offered further to astruct the same, his Lordship, by an interlocutor of this date, “ be­ fore answer, allowed Robert Fleming to give in a conde­ scendence of what further evidence he offers to adduce in support of his service, and of his being the nearest heir o f the said John Fleming of Board.” A condescendence was accordingly exhibited by Robert Fle­ ming; ming; and answers being made thereto on the part of Lady Clementina, his Lordship, on advising thereof, resolved to re- port the cause, and hath ordered informations: in obedience to which this is humbly offered on the part of Lady Clemen­ tina Fleming; who, in the sequel, shall be called pursuer, in regard it is her action of reduction that gives rise to the pre- sent question. In the answers to Robert Fleming’s condescendence, it was observed, in the first place, That whereas hitherto Mr Fleming, in all the various proceedings had by him, his trustee, and their advisers, in order to maintain his pretensions, did con­ tent himfelf with assuming the appellation of great-grand/on of John Fleming of Board; particularly in the trust-bond which he granted to Rothmaise, and all the diligence following thereon; and likewise in his claim to be served heir, upon which the service now under challenge did proceed: yet now, both in the title, and through the whole of the condescend­ ence, Mr Mr Fleming was designed grands on and heir of John Fleming of Board; which might be apt to mislead, and deemed calculated to procure greater weight and credit to the parole- evidence on which this service solely rests, as no doubt witnes es may be more easily supposed capable to swear, from their own proper knowledge, to one’s propinquity and rela­ tion to a grandfather than to his great grandfather. And the pursuer begs leave to make the same preliminary observation here, lest her party should fall into the same mistake in his information. The purfuer shall now proceed, f irst, to take notice of what has been argued for Mr Fleming, in bar of her reduction, edly, She will state the exceptions that occur against the service in question, as sufficient to set it aside. And, lastly, will consider what has been offered by way of adminicles and support thereto, and how far the same can be available. And, in the f irst place, it was set forth in the condescendence, That in the 1742, Rothmaise raised a process of mails and B duties, duties, upon the title of the adjudication deduced against Ro­ bert Fleming above mentioned: That thereafter the present process of reduction and improbation was brought against Lady Clementina and her husband; who compared, and took terms for satisfying the production; during which proceedings they had made no objections to Mr Fleming’s title, or his propin­ quity. Further, That Mr Fleming having produced his ser vice in the reduction, the process went on for several years thereafter, without any challenge or exception taken thereto, until Lady Clementina became apprehensive, that she would nor be able to support her pretended rights to the estate of Board, on the merits of them, when duly considered, on which account she had at length thought fit to challenge Mr Fleming’s service by a reduction. From all which Mr Fle­ ming contended, 1mo, That it is not now competent for La­ dy Clementina to object to his title, far less to reduce his ser­ vice, after these proceedings. 2 That the pursuer could not, in ju stice and equity, be suffered to profit herself to the prejudice of Mr Fleming, by delaying to bring this challenge at the very end of twenty years from the date of the service: That she might and ought to have made such objection to his title, at least twenty years ago, when the witnesses adduced in the service were alive, and when others could have been found for further instru cting his propinquity, who are now dead. It was further said, That even at the commencement of the present process, and for some time after, one of those two witnesses was still living; but that the pursuers had thought fit to forbear this challenge while these or any other witnesses they knew of were living; and then insist, after they think that by the course of nature it has become impossible for Mr Fleming to bring more positive evidence in his favour- a device for depriving him of his ju st right, in which it would be inconsistent with ju stice to indulge them. To this plea the following answers were made, and which w e now humbly submitted to your Lordlhips. 1mo, With re- spect spect to the process of mails and duties ano 1742, That Lord Wigton, Lady Clementina’s predecessor, was not made a par­ ty thereto; and Lady Clementina never knew of it till lately, that the summons was produced in the present process; and from inspection whereof it does appear, that it was never in­ sisted in, but deleted from the roll at first calling. No argument therefore can be drawn against her from Mr Fleming having voluntarily dropped this process, to which her ancestor was no party, and of which she herself was not in the knowledge till lately; although, had she even known of it sooner, his de­ ferring that process could certainly be no motive for her to take any trouble, in order to demolish a title which he himfelf had so easi l y relinquished. 2do, As Robert Fleming’s reduction and improbation a- gainst Lady Clementina herself, was commenced no earlier than 1758, it was most erroneous to plead, that she might and ought to have objected against his titles twenty years ago; and your Lordships will be informed, that even then Robert Fleming’s general service was unknown to her or her doers, it not having made its appearance in the process till 1759; and it will occur, that while the Lord Edgefield’s interlocutor above recited stood in her favour, sustaining Lady Clementina’s exclus ive title, there was no occasion or necessity to impugn his propinquity, which this service was meant to establish but how soon that judgment was varied by the court, which was on this ground, That the then doers for Lady Clementina had committed an oversight in point of form, in taking terms to satisfy the production, and allowing acts to be extracted, in place of immediately pleading and producing her exclusive ti­ tle, (which they had imagined to be equally competent any time before certification was insisted for), your Lordships have seen she immediately instituted her challenge of this ge­ neral service, the reduction having been raised and executed against Robert Fleming and his trustee in January 176 1. The The pursuer does submit to your Lordships, Whether the proceedings in Robert Fleming’s reduction and improbation above set forth, can be now obtruded in bar of her challen­ ging his service? So far, it is indeed true, your Lordships gave the point against her, that after allowing terms to be assign­ ed for satisfying the production, and acts to be extracted, she could not, agreeable to form, be heard to plead on her exclus ive title, to the effect of superseding the necessity of produ­ cing, or submitting to a certification. But she is humbly ad- v ised, that all defences are still entire to her against her com­ petitor’s title; and that her taking a day to satisfy the pro­ duction, was an acquiescence therein, to this effect only, that she behoved either to produce the writings called for, or al­ low certification to go against them. Again, with respect to the mora imputed to Lady Clemen­ tina, in delaying her challenge till almost the close of twenty years from the date of the service, it will occur, that as the law has allowed twenty years for challenging false or errone­ ous services, that privilege may certainly be competently ex ercised, by any person having interest, at any time with­ in that space. But, in the next place, although the service in question does indeed bear date the 6th of June 174 1, and the reduction of it was brought only in January 1761; yet your Lordships will please be informed, that this service was not retoured to the chancery sooner than the 13th of March 17 5 0; for which the records of chancery were appealed to in the debate before the Lord Ordinary: and as the vicen­ nial prescription can only begin to run from the date of the retouring, consequently, at the time of instituting the re­ duction, there was little more elapsed than one half of the twenty years, within which this service might legally be chal­ lenged. Neither is the pursuer apprehensive, that your Lordships will be moved by the inconveniencies Mr Fleming affects to suffer through this delay. Indeed it is plain, he has himself alone alone to blame if he should suffer any. It was certainly His business, at expecting this service, to have availed himself of the opportunity he pretends to have had, and to have made the evidence of his propinquity appear on the face of the pro­ ceedings, so clear and complete as to be afterwards unim­ peachable. And since, as he has set forth in his condescend- ence “ That even at the commencement of the present pro- c e s s and for some time after, one of the witnesses was a live,” why did he not apply for having an examination of this witness taken? He has laid, that the two witnesses exa­ mined upon his propinquity in 174 1, were upwards of eighty years of age, consequently at the commencement of the pre­ sent process, which was in 176 1, the witness said t o have been then surviving behoved to be upwards of 100; and if this was true, it would have sounded Mr Fleming, who has all along had the assistance of very able counsel, in an applica­ tion to have the examination of that witness immediately ta­ ken; and his not doing so, in the pursuer’s humble appre­ hension, does militate strongly against him. But at any rate, she relies, that your Lordships will not think her barred, up­ on any of the grounds objected by Mr Fleming, from quar­ relling his service. Which leads her, in the next place, to state the exceptions that occur against the same. The substantial defects of this service are, 1st, That the claim on which is proceeded does not specify the claimant’s grandfather, through whom he connected with the person to whom, as his great-grandfather, he desired to be served heir. In all cases where a service to a remote ancestor is to be carried on, it is essentially requisite, that the claimant’s desc ent, and the persons intervening between him and that an­ cestor, be particularly set forth and instructed; and if an in quest should serve a person without specially condescending on every link of the chain of propinquity, it is a good ground for setting aside the service. — This supreme court, 130 years ago, in a question between the Earl of Cassilis and the C Earl Earl of Wigton, one of the present pursuer’s predecessors e- stab lished this regulation in the following words. “Item, They found, That the party desiring to be served, ought to q u a l i f y and be special upon the descent, and persons inter- v e n in g betwixt him and the defunct to whom he craved to b e s e rv e d; and also, that he ought to instruct and verify the descen t, the instruction whereof ought to be made to the assize, and not to the judge, and ought to be produced to the assizers,” &c. Agreeable to this, the doctrine is laid down by Lord Stair; and in conformity thereto, it is the constant practice to particularize in the claim all the per- sons intervening between the claimant and the ancestor where he happens to be a remote one. Another capital defect under which this service labours ex facie of the proceedings, is, That there was no proper ve­ rification or instruction of the claim laid before the inquest to warrant the report made by them in favour of Mr Fle­ ming.; ' • Your Lordships will observe, that they have been pleased to “ serve and retour the said Robert Fleming nearest and la w fu l h e ir t o s a id d e c e a s ed John Fleming of Board his great-grandfather, afirmtve,n respect no person appeared to ob ject, an d o f th e d epo sition s o f th e said John Jarvie and James Aitkn, (these being two of the inquest); and that their depositions again, are simply their subscriptions affixed on the margin with “ Depones affirmative,” subjoined. It has been said, That the witnesses did depose to the cl aim-ant's propinquity from their own knowledge and belief and good and rational grounds; but that, according to the custom in such services, the particulars of the depositions were not ta­ ken down; and that it was sufficient to mark, that the wit nesses deposed affirmative to the claim. The purfuer shall not dispute, where the propinquity is re­ cent, such as that of a father or brother, that, habite and re­ pute, pute, either consistent with the personal knowledge of some of the inquest, or verified by others, and the marking, that the witnesses had deposed affirmative to the propinquity, would be sufficient to support the service; but she is advised, that the case of a service to a remote ancestor is widely dif­ ferent; and that it is not the practice to attempt such a ser­ vice, without specially setting forth every step of the propin­ quity, and also proving the same by witnesses, so far back as the memory of man can go, and beyond it by writ; and that in all such cases, the witnesses particular cause of know­ ledge is always taken down fully, and likewise all the wri­ tings used for verifying the claim narrated in the proceed ings. Lord Stair, after laying down the doctrine in the place al­ ready quoted, reports a decision in conformity thereto, in Mar.22.1633 the following words. “ So the fervice and retour of the Earl of Airth, then designed Earl of Strathern, was reduced, be cause the propinquity of blood was not sufficiently instruct- ed, which could not be known by the inquest or witnesses, the progress thereof being far part memory of man, and hearsay or common fame was not found sufficient; nei ther were the writs produced sufficient to prove the said Earl’s propinquity of blood,” &c. In the present case, it is clear, there was not a writing of any kind produced to the inquest to verify the propinquity; for that their report expressly refers to, and proceeds upon, the depositions of the two persons therein mentioned. A- gain, there is not the least vestige of any one particular ha­ ving been by them condescended on as their cause of know­ ledge; and the nature of the thing speaks it, that neither they, nor any man living, at the date of the service, could, from their own proper knowledge, bear testimony, and depose to Robert Fleming’s propinquity to that remote ancestor to whom he was served heir. This [■ 11 l? This will be apparent when your Lordships are informed that, from Robert Fleming’s own showing, in the course of his process with Lady Clementina, this pretended ancestor of his lived as far back as 158 3; he having, in order to streng then his pretensions, produced and founded on a disposition of the lands o f Board, &c. bearing to be granted, in 1583 by John Fleming of Board to John Fleming younger his son; and which last-mentioned John was, by Mr Fleming the de­ fender, averred to be the John Fleming of Board, his great­ grandfather, mentioned in his claim and general service; and who, there will be occasion in the sequel to show, beho­ ved unquestionably to have been dead in 1 59 7, i.e. 14 4 years prior to the expeding of the service in 174 1, and six ty four years prior to the birth of the two witnesses adduced in his service, supposing them to have been then eighty years of age, as Mr Fleming has said. Such is the complexion of this notable service, that your Lordships see was secretly carried on before a court where there was little chance of its coming to the knowledge of anv party interested to oppose it, and returned by an inquest con- sisting, besides the two witnesses above mentioned, and Mr Flemings own agent, of a historiographer, some low retain­ ers about the Canongate court, and a set of ignorant trades men and mechanics in that jurisdiction; and, finally, kept up latent and unretoured for the space of ten years after its date it calls to remembrance the ju st censure passed by a celebrated Latin poet, upon the vanity and partiality of the Greek histori ans towards their own country: Quicquid Graecia mendax audet in historia Indeed Mr Fleming’s counsel, sensible how much he is pinched to support this fervice, have been obliged to argue in the first place, That as he is possessed of a service regularly expede, the pursuer, when seeking to reduce it, must be subject to the common and ordinary rules of law in cases of the same kind; and that the onus probandi lies upon her to prove, that Robert Fleming is not the heir of John Fleming of Board, but that the succession devolved in a different channel: and they referred to the late case of Margaret Kennedy agains t Mr John Erskine; who, as being in possession of the estate of Tullyallan, whereof an adjudication was sued against John Blackadder as heir of Tullyallan, was allowed to prove that a nearer heir existed: and alledged the present case to be much stronger for Robert Fleming than if he had only an adjudica­ tion; for that here is a service duly expede twenty-five years ago, which, as it stands, is full and legal evidence, by the verdict of a jury, of Mr Fleming’s being the heir of his pre- decessor therein mentioned. To this it is answered, That the service is no doubt held to be legal evidence until it be set aside. But are not the parties now in a reduction of it? And Lady Clementina's plain ground of reduction is, That it falls to be set aside, both in respect of the claim being fundamentally defective and infor­ mal, and of the service having proceeded without evidence of the relation or propinquity.- The doctrine pleaded for the defender appears, with great submission, to be a very strange one, and no way supported by what was adjudged in the case of Mr Erskine. It would seem to infer, that an inquest must serve any claimant, whe­ ther he brings proof of his propinquity or not, unless some person show that the claimant is not the heir; and that a ser- vice, though apparently destitute of all manner of proof, can­ not be objected to or quarrelled by a party having interest to set it aside, unless he shall point out a nearer heir. The case of Mr John Erskine, as stated in one of the print­ ed papers in that cause, preserved by Mr Falconer the collec tor, was shortly this: that, first of all, an adjudication was attempted in name of one David Miln, as trustee for John Blackadder, which was dropt upon compearance being made ' D for [• 13] % for Colonel Erskine, who had purchased and was in possession of the estate of Tullyallan. "Thereafter, in April 1734, the said John Blackadder got himself served heir to Sir John before the sheriffs of Edinburgh, unknown to the Colonel; and, upon that title, pursued a reduction and improbation against him of all the rights in his person affecting the said lands: and the Colonel having, b y way of defence, repeat- ed a reduction of the service before the sheriffs, your peti- tioner (Mr John Erfkine) must acknowledge, that Mr Blackadder brought a cloud of witnesses, who pointedly s wore that he was Sir John Blackadder’s grandson; and that he also produced six or seven documents in writing, all asserting the same fac t; notwithdanding which your Lord-s hips unanimously reduced the fervice.” And then the pe­ tition narrates, That John Blackadder, last of all betook him­ self to his first device, and granted a trust-bond to Mrs Mar­ garet Kennedy; upon which an adjudication being again at- tempted to be led of the estate of Tullyallan, Mr Erskine, the Colonel’s heir, entered his objection.— And as, in this case, Mr Erskine offered to prove a nearer heir existing, it was no doubt incumbent on him to make good his allegation. But this, with submission, can never apply to the present case, where the plea maintained for Lady Clementina is this, That there is no sort of evidence of the propinquity which Mr Fle­ ming has made the handle for disquieting her in this manner, and calling her rights in question; and therefore it lies with the defender to obviate this objection, otherwife he must drop his pretensions to the characte r he has assumed; for as to the pursuer, it is sufficient for her to say, You have not proved the relation on which your claim to part of my estate is grafted. But indeed it is submitted to your Lordships, whether the pursuer has not even done what Mr Fleming requires, and that in the most strong and satisfactory manner. She has produced the retour of a service of Agnes Fleming, as heir of John John Fleming of Board, her father, who, from the date, anno 1597, can be no other than the John Fleming of Board who lived in 1 583, and whom Robert Fleming has pitched upon to be his great-grandfather; and as this service appears to be the report of an inquest: of most respectable persons living in that part of the country, it affords legal demonstrative e vidence of the falsity of Robert Fleming’s service now under consideration, seeing it is impossible that Agnes Fleming could have been served heir of line to her father by such a jury, whether he was the John Fleming of Board, who granted the disposition 1583, or John Fleming the younger, his son and disponee, with whom Robert Fleming connects as his great­ grandfather, if there had then existed any lawful issue-male of John the younger. And from this Agnes Fleming, your Lordships will observe, that the pursuer’s predecessors did, 170 years ago, reacquire the property of the lands in question, whereof they were originally the superiors. Mr Fleming the defender insisted much upon the danger­ ous consequences of over-ruling his plea; but the pursuer is at a loss to perceive them. In her humble apprehension, it, on the contrary, will have the salutary effect to prevent imposi- tions from being attempted for the future. Was Mr Fleming’s doctrine to be listened to, the consequences would indeed be pernicious, as the door would be in a manner shut against the reduction of services, even where ex facie there is not the least evidence to warrant them; which is not only the case of the service in question, but further your Lordships have before you convictive evidence that must clearly redargue the truth of it. Nor can the obtainer of such a service ju stly complain if it is challenged within the time allowed by law. That he must always lay his account with; and when it happens to be brought, he has it in his power to push a decision, and prevent any prejudice from the death of witnesses, by craving an examination of such as he judges to be material. Upon the whole, therefore, of this point, as the challenge against [1 5] against Mr Fleming’s service resolves into a defect of evidence as to his supposed propinquity, appearing ex facie of the pro­- ceedings, the pursuer humbly apprehends it would be sufficient f o r her purpose to qualify this essential defect, to put an end to the disquiet and trouble she has suffered, without the necessity of bringing contrary evidence, though this she has also done; and that it lies with the party-obtainer of this service at least now to aftrust and support it by proper satis- factory evidence. O n th is la s t b ra n ch o f the cause, the pursuer will proceed to submit to your Lordships, if what has been offered in or- der to supply the original defect which this service labours under, is at all satisfactory or admissible. It was said in Mr Fleming’s condescendence, That although habite and repute is alone held sufficient to found the service of an heir; and that a service, though expede on that sole ground, cannot be reduced, without evidence for removing it brought by the object o r; yet in this case there is reason to believe, that the old witnesses examined at the service had more positive cause of knowledge of the claimant’s title and descent; and further, that two writings produced by the de­ fender, one dated in 1625, and the other in 1628. and both witnessed by a John Fleming, did clearly show that John Fleming of Board, the ancestor to whom Robert Flem in g is served, was living so late as the 1628, and that for ou g h t ap ears, he may have lived for a great many years thereafter and possibly even down to the time of the old witnesses exa­ mined upon the service now under reduction. That habite and repute may be a sufficient foundation for a service de recenti to a contemporary relation, e. g. a father or Mother, has been already yielded; but that this alone would be sufficient to estab lish a proof of propinquity, where the ancestor is so remote as a great-grandfather, is a proposition the pursuer can by no means agree to. In such a case hearsay or common fame will not be sufficient, as your Lordships have have repeatedly found. And indeed it would be most dan­ gerous to rest the proof on the uncertain evidence of common report, when the propinquity runs farther back than the me­ mory of man; and that it behoved to do so here, seems to be past all manner of doubt, for the reasons already given. And with regard to the writings founded on by the defend­ ers, the pursuer will take the liberty to say, it is a pretty bold attempt to pass them upon your Lordships, by way of supple- tory evidence, in support of Mr Fleming’s service. The first is an assignation by James Harper, which in the condescendence is said to be dated 27th April 1625. But your Lordships, upon taking inspect ion of this paper, will plainly perceive a vitiation of the date, as also an erasement upon the back of the writing, where the figures 1625 stand superinduced. And that this could not be its genuine date, is evident from this circumstance, that the subject assigned is a bond, the date whereof is expressed to be the 23d day of May, the year of God 16 31 years. In the next place, the name and designation John Fleming of Board, is plainly an ex post fa cto addition to the testing clause, wherein a sufficient number of witnesses was already insert, and their subscrip- tions adhibited; and this addition is not of the same hand­ writing with the assignation itself, but would seem to have been the operation of the same hand by which John Fleming’s subscription as witness is adhibited. And, lastly, The alte­ ration of the date, the addition of John Fleming’s name and designation in the testing clause, as also his subscription, are all performed with the same ink; which appears much black­ er than that which had been used by the writer of the deed. Again, with respect to the other writing founded on, viz. a tack between William Fleming and Alexander Tweedie an­ no 1628, it is remarkable, 1st, That the name and designa­ tion of John Fleming Son of Board, is in like manner an ex post facto addition to the testing clause, (there being a sufficient number of witnesses insert and subscribing), done by a hand E different different from that of the writer of the deed, and very much resembling the hand-writing wherewith the addition above noticed has been made to the assignation. 2dly, It is obser vable, that in this deed John Fleming is designed the Son of Board; and his subscription, as adhibited thereto, is spelled in quite a different manner from the subscription of John Fleming at the assignation. Supposing, therefore, these subs criptions to be genuine, it is plain they could not be the same person; and whoever these witnesses were, neither of them can be the John Fleming of Board who lived in 1 583 and to whom, as his great-grandfather, the pursuer con­ nects; nor lawful dependents of him, as Agnes Fleming's service 1597 clearly proves that he died without heirs-male of his body. It was laid in the condescendence, That the witnesses in the service deposed, that Robert Fleming’s father was com­ monly known by the name of Board's oye.------ No such thing appears from the grounds of the service produced. If he was Board’s oye, he must have been of the bastard kind: and the extract from the register of baptisms in the parish of Falkirk, produced by the defenders, wherein a John Fleming, bap­ tized on the 28th June 1609, and whom the pursuer calls his father, is designed lawful s on to John Fleming, but this John is only designed the son (without the epithet lawful) of Fleming of Board, seems to tally with this suppofition: and this may probably account for Robert Fleming having altogether left out of his claim the mention of his grandfather, on account of his being a bastard descendent of the Flemings of Board. T he defenders will probably repeat in their information a most false and injurious allegation they have often made, of the Earl of Wigton's wrongfully seizing and carrying off the whole papers relative to the estate of Board, on the death of Robert Fleming’s father, from an apprehension of the ju st claim which he had to these lands, T his assertion is altoge- '• ther ther destitute of truth; and no evidence has ever been offer­ ed in support of it. Lastly, It was insisted for Mr Fleming, That he is intitled to have the oaths of the pursuers themselves, and their agent, as in an exhibition, for production of any papers or writings that they have reason to believe did belong to the defender’s father, or his family, and even of any other writings in their possession, which may tend to show his propinquity. It is believed, little need be laid in answer to this very extraordinary de­ mand. Mr Fleming has never as yet condescended on any particular writings, in the custody of the pursuers or their a- gent, that can aid him in the present question; and since the decision 8th July 1737, Francis Scot against Lord Napier, such a demand as is here made, has never been regarded by the court. Upon the whole, it is humbly hoped it will be the opinion of the court, That the pursuer’s challenge of Robert Fleming’s general service is both competent and well founded; and, 2dly, That nothing satisfactory has been offered in his conde- scendence in fupport of i t; and that therefore it falls to be set aside and reduced. In respect w hereof &c, WILL. WALLACE. AP- #A P P E N D I X. N° I. Retoured fervice of Agnes Fleming, as heir of John Fleming of Board, her father. I_T/tG inqnilitio fada fuit in prsetorio civitatis Glafguen.1 coram honorabilibus viris Roberto Boyd de Baddin- haith, et Jacobo Stewart burgen. did. civitatis, vicecomiti- bus vicecomitatuum de Dunbartane, Striveling, Linlithgow, ■et Ranfrew, in hac parte, per commiiTionem S. D. N. Regis fpecialiter conlhcutis, vicefimo feptimo die menfis Odobris, anno Domini millelimo qumgentefimo nonagefimo feptimo, per hos probos et fi leles homines patrije fubfcriptos, Do- minum Willelmum Levingfton de Dernchefter, Militem, A- lexandrum Fleming de Barrochan, Claodium Hamiltoun de-Cochnoch, Mattheum Brifbane de Rofland, Thomam Fle­ ming de Corlhchillis, Jacobum Muirhead juniorem de Sau- chope, Patricium Houltoun de Craigtoun, Robertum Stirling-de Letter, Robertum Boyd in Drum, Malcolum Fleming de Woddellie, Joannem Hamilton de Bardowie, Jacobum Kin- • caid juniorem de FLodem, Joannem Gartfchore de F.odem. Willelmum Fleming et Jacobum Fleming imercatores, cives did. civitatis Glafguen.; qui jurati dicunt, Quod quondam Joannes Fleming de Boird, pater Agnetis Fleming, latricis prafentium, obiit ad pacem et fidem didi Domini noftri Re­ s '-'; et quod dida Agnes ell l’ola filia et haeres didi quondam Joanms fui patris, et quod elt legitimte aetatis; et quia dida Agnes in fuo clameo nullas petiit terras, ideo caters breves claufuls in fe remanent in defervitte. In cujus rei teftimoni- um, ligilla quorund. eorum qui dad. inquiikioni imererant praefentibus prxfentibus funt appenfa, fub anno, die, menfe, et loco prse- fcript. Hec ejl vera copia principalis retornatus fuper premiffis in c a n c e l l a r i a S. D. N.Regis r e t me Joannem Wylie, notariumpublicum, ac deputatum bilis v iri Magijlri IVjilelmi Scot-de Crangcmitire, ejufd. cai- cellar i