Information 1766

I N FORMAT ION F O R R o b e r t I NFORMAT E sq; G rea t G ran d son and H eir o f John Fleming o f B o a r d, and John Grant o f Rothmais e h is T r u stee: A G A I N S T L ad y Clementina Fleming, and Charles Elphin- ston, E sq; h e r H u sband. I N the year 1374, King Robert II. having granted acharter of confirmation of the lands of Board, and others lying within the barony of Lenzy to Patrick F l e m i n g, second son of Malcolm Fleming of Biggar, to be held by the said Patrick and his heirs, of the barons of Lenzy.—These lands were possessed by the descendants of the said Patrick Fleming, till they came into the person of J ohn Fleming of Board, who upon the 1 8th of October 1583, disponed the same to John Fleming his eldest son, his heirs and successors. These lands having been, for a considerable time past, possessed by the family of Wigton, who, as barons of Lenzy, were superiors thereof, (tho’ by what means they came to obtain possession of the same, does not now with certainty appear), Robert Fleming, the only son of the deceast John Fleming Fleming in the mains of Cumbernauld, and the great grand- son and heir of John Fleming, to whom these lands had been disponed in the year 1583, as said is, by John Fleming of Board his father, upon the 6th of June 1741, obtained himself served heir in general to the said 'John Fleming his great grandfather, before the baillie of Cannongate; and ha­ ving upon the 24th of July that year, granted a trust bond to John Grant younger of Rothmaise; the said John Grant, upon the 26th day of November thereafter, obtained a de­ creet of adjudication of these lands, proceeding upon a spe- cial charge against the said Robert Fleming, to enter heir to John Fleming his great grandfather, or others his predeces- sors who died last vest and seized therein. Upon this title Mr. Grant of Rothmaise having, in the year 1742, brought an action of mails and duties against the tenants of those lands, in whose name a defence was returned, “That they were only vassals and tenants of the Earl of Wigton, who had a prior and preferable right to the lands adjudged, and stood heritably insest therein anno 1681." Mr. Fleming and his trustee Mr. Grant were advised, that it would be proper before that process of mails and duties was further proceeded in, that a reduction and improbation should be raised in their names against Lady Clementina Fleming, then having the right to the estate of Wigton, and Mr. Charles Elphinston her husband, calling for exhibition of any writs pretended to have been granted by the said John Fleming of Board, great grandfather of the said Robert Fleming, his predecessors or authors, to the de­ fenders their predecessors or authors, or to which they have right, anyways concerning the lands adjudged; and con­ cluding for having the same improved as false.------In the course of which process, after acts for the first and second terms had been regularly extracted, and the defenders or­ dained to satisfy the desire of the act within ten days, they produced the following writs, in order to exclude the pur- suers suers title; 1st, Special retour of John Earl of Wigton, as heir of William Earl of Wigton his father, dated the 1 9th of 0 ctober 1 6 8 1: 2dly, Instrument of sasine thereon, dated the 8th of November that year: 3dly, Extract bondftailze by the said John Earl of Wigton, in favours of Mr. Charles Fleming his brother, and others, dated 24th June 175: 4 t h l y, General retour of the said Lady Clementina Fleming, as heir of line, tailzie, and provision, of the said John Earl of Wigton her father, dated the 24th of July 1751: Charter under the great seal in favours of the said Lady Clementina Fleming, proceeding on the forefaid bond of tailzie, dated the 26th of July 1751: And 6thly, Instrument of s asine following upon the said charter, dated the 23d of Sep­ tember 1751. Upon this the question having turned, How far the de­ fenders their having possessed the lands of Board, and others mentioned, in the pursuers tile beyond the years of pre- scription, was in that state 0f the process sufficient to ex­ clude them, and if a proof of such possession ought to be allowed for that purpose? The Lord E dgefield, then Ordi­ nary in the cause, upon the 5th of February 1760, pronoun­ ced the following interlocutor on the minutes of debate: The Lord Ordinary having considered the foregoing de­ bate, and writs produced for either party, finds the de­ fence of prescription, founded on the special retour and sasine of John Earl of Wigton deceast, with forty years uninterrupted possession thereupon of the lands in que­ stion, relevant to exclude the pursuer’s title; and allows the defender to prove such possession in habile terms, and the purfuer to prove interruptions thereof, & c. ’ ' Of which judgment the purfuers having complained by a re­ claiming petition, the Lords, upon the 23d of December that year, “ Found it not competent for the defender, in hoc s ta tu, to demand a proof of possession, before making a “ full production.” Here- Hereupon the defenders having made a further producti­ on of a variety of writings, particularly two precepts of clare constat granted by John Lord Fleming, to Agnes Fleming daughter and heir of "John Fleming of Board, in the lands of Board and others, dated 30th January 1597, with cer­ tain rights thereto, flowing from her in favours of the fa­ mily of Wigton, and a general retour of her, as heir to the said John Fleming of Board her father, dated the 27th of October 1597. Upon the 2 1 st January 1761, avisandum was made with the writs there produced, and certification granted quoad ultra. While these proceedings depended in the process at Mr. Fleming and Mr. Grant's instance, against: Lady Clementina Fleming and her husband, in the course whereof it appears, from minutes of debate upon the 27th 'January 1759, the pursuers then produced Mr. Fleming' s retour as heir to his great grandfather, with a disposition of the lands of Board and others to him, dated the 1 8th October 1583; a counter-process of reduction was brought by them against the said Mr. Fleming and Mr. Grant, for having Mr. Fle­ ming' s service set aside, in respect the same proceeded with­ out any proper evidence of the propinquity; and likewise, for having the adjudication obtained against: him, set aside upon the same ground. In the course of which second pro­ cess of reduction, after the same was remit to the former, the Lord Pitfour, then Ordinary to both these processes af­ ter the death of Lord Edgefield, and before whom the de­ bate turned, how far, on the one hand, Mr. Fleming should be obliged to produce, not only his retour, but the grounds and warrants thereof; and on the other hand, how far La­ dy Clementina Fleming and her husband should be obliged to produce certain writings specified in a condescendence given in by the other party? The Lord Ordinary, upon the 29th of January 1765, found, “ That Robert Fleming was obliged to take a term to satisfy the production in. the the counter-reduction. brought at the instance of Lady Clementina Fleming and Charles Elphinston her husband, and assigned the 12th of February then next for that pur- pose, and granted diligence at his instance against ha­ vers, other than the defenders, for recovering all writs relative to the matters in question; referring also to the said Robert Fleming, during the course of the process, to apply for recovery from the defenders of any writings in their hands in which the pursuer should appear to have a proper interest. ” And upon advising a represen- tation complaining of that interlocutor, with answers there­ to, his Lordship, upon the 2d of July 1765, “ Adhered to the former interlocutor of the 29th of January then last: Found, that Robert Fleming was obliged to take a term to satisfy the production in the process of reducti­ on brought against him at the instance of Lady Clemen­ tina Fleming and her husband: And found, that it was not sufficient for the said Robert Fleming to produce his service, but that he must also produce the grounds and warrants thereof. And with respect to the condescen- dence of writings antecedent to the year 1578, which the pursuer Mr. Fleming insisted for production of against the defenders, found the defenders were not obliged to produce the same, in order to answer the conclusion of that process of reduction and improbation which was already closed by a decreet of certification extracted by the pursuer, so as these writings could not thereafter mi­ litate against him. And as to the production craved by the pursuer in modu probationis, superseded the conside- ration thereof, until the pursuer insisted in his reasons of reduction, whereby it might appear whether he was in- titled to found upon these ancient writings in probation of these reasons of reduction." To which interlocutor of the Lord Ordinary, the Lords, upon the 1 9th of Novem­ ber last, having advised a petition, reclaiming against the B same, same, with answers thereto, “ Adhered, and refused the desire of the petition.” Thereafter, Lady Clementina Fleming, and her husband, having insi sted before the Lord Ordinary, in their counter- reducdion of Mr. Fleming's service, the principal service it- self being then produced, his Lordship, on the 7 th of Fe­ bruary last, “ Before answer, allowed Robert Fleming to give in a condescendence of what further evidence he offered to adduce in support of his laid fervice, and of his be­ ing the nearest heir of the said John Fleming of Board." And upon the 28th of June last, his Lordship, “ Having considered the condescendence then given in for Mr. Fle­ ming, with the answers thereto for Lady Clementina Fle­ ming and her husband, made avisandum therewith to the Lords, and appointed both parties to prepare informati­ ons in the cause.” In obedience whereto, and to subse- quent appointments for the same purpose, what follows is humbly submitted to the court on the part of Mr. Fleming and Mr. Grant, who shall sometimes assume the name of pursuers simply, because they were such in the original process of reduction, tho’, in the prefent question, that o f the reduction of Mr. Fleming's service, as heir of his great grandfather, and of the adjudication led against him by his trustee, as charged to enter heir to his predecessors, they are properly defenders. The pursuers, then, humbly submit it to the court: In the first place, If the defenders, in the original process have presently, in their person, a proper title to carry on this action, that is, the reduction of Mr. Fleming's service as heir to his great grandfather.—For the Lords will please know, that this action is expressly laid upon Lady Clementi­ na Fleming's title, as deriving right from Agnes Fleming, who is said to have been served and retoured heir in general to John Fleming of Board, her father, conform to the retour furth of the chancery, of her service before the magistrates of of Glasgow, dated in the year 1 597. They will like- ways please be informed, that altho’ the decreet of cer­ tification, obtained as above mentioned, in the original process of improbation contra non producta, may, perhaps be thought not directly to affect that retour, as it is among the writings produced; yet there being none of the grounds and warrants thereof produced, the decreet of certification must necessarily affect these, and, consequently, the retour being destitute of proper warrants, must fail to the ground as false and forged, there being no prescription in cases of falshood; and that the rather, that after a diligent search amongst the records of chancery, there appears no vestige, that any such service as that of Agnes Fleming, the heir of John Fleming of Board, her father, was ever retoured there- to: To the writing produced in process, called the extract of such a principal retour, which is not written on parchment, as is usual in such cases, but on common paper, are subjoined these words: “ Haec est vera copia principalis retornatus su- per praemissis in cancellaria S.D.N. regis remanent, co- piat. et collationat. per me Joannem Wylie, notarium publicum, ac deputatum honorabilis viri, magistr i Willelmi Dick de Grangemure, ejusdem cancellariae directoris, sub meo signo et subscriptione manualibus. Ita est Joannes Wylie, notarius publicus, manu <4_ 11propria. This may, from what appears, have been only a copy taken by the person who signs the same in the quality o f a common notar, and not given out by him as the proper officer of chancery, in that character, as a true copy of the original retour, the fame appearing to be subscribed in the character of a common notary, and not that of an of- ficer of chancery: But be that as it will, what Mr. Fleming and his trustee humbly insist on is, that there being alrea­ dy a decreet of certification pronounced in the original pro- cess ces s of improbation, which certification affect s the grounds and warrants of the writing produced, said to be the ge­ neral retour of Agnes Fleming to her father: And further, there being in the chancery records no such original retour to be found, nor any vestige that ever such a service pro­ ceeded, or such retour was made, the writing produced must be held as false, and, consequently, cannot be the foundation for carrying on this process of reduction of Mr. Fleming's service. It has been determined, that in an im- probation even of a decreet recovered before the court of session, the grounds and warrants of such decreet must be produced, and that when writs are registered, there the principals themselves must be produced; particularly, in two cases observed by the Lord Fountainhall, one upon the 7 th of July 1702, Hume of Renton against Sir Patrick Hume, and the other on the 28th of December 1704, Wils on against Lord Salline; in which last certification was granted, the principal writ being amissing. And it has likeways been determined, that where a principal writing hath been lost by the disorder of the times, from amongst the records of the court of session, certification could not be granted a- gainst an extract thereof, as is obferved by Lord Dirleton, 2d November 1666, Blackwood against Purves; which suf- ficiently shows the sense of the court, where such loss can­ not be so accounted for.—And this is likeways the opinion expresl y given both by the Lord Stair, p. 592 of his insti- tutes, E d. 1693. and of the Lord Dirleton, p. 173 [5]of his Doubts. The first of these authors says, “ It is a relevant defence against certification, or taking a term to produce, that the writs called for are in publica custodia, that is, in the register of the session, or in the chancellary, &c. yet the defender must condescend upon the dates of the regi- 1 stration; and i f the writs be not found accordingly, cer- tification will be granted, and the words of the Lord Dirleton JDirleton are, In causa falsi haud sufficit exhibitio exemplaris rite extracti, nec immerito et fine ratione; instrumentum enim ipsum multa fortasse s ufficeret argumenta tam ad veritatem a- struendam, quam ad fals itatem arguendam, ex comparatione li­ terarum et s ubs criptionibus testium et partium; et alia p lu- rima, quae extracto tantum exhibit0 desiderantur." And with these authorities concurs the Lord Bankton, who, p. 165 vol. II. of his institutes, says, “It is sufficient to stop cer- tification against writings registered in the general register at Edinburgh, where the principals are left in the record, to give in a condescendence of their registration, but i f the clerk vouch that no such writings are there, certification will go out.” And if this will hold, even with regard to the grounds * and warrants of the decreets of session, and to writs regi- stred there, where there is the greatest presumption to be­ lieve every thing has been conducted with the utmost accu­ racy; and where, in the case of decreets in foro, different parties are appearing, each supposed to be properly attentive to his own interest, it is humbly submitted, how much more the same must hold in the case of retours made to the chancery, that is not a court of justice, where extracts of retours proceed in common course, without any opposition given by one party to another, and without any attention to what is passing there. And such appears to have been the sense of the court in a cafe observed by the Lord Durie, 29th of February 1628, Earl of Nithsdale againft Ld. Westra, where certification was refused only against retours of services before the year 1544, in regard the registers were then burnt by the Englis h. 2dly, The pursuers in the original process, and defenders in this, humbly submit it to the court, if, after the proce­ dure that has been already had in the first process, it be now competent for the defenders therein to insist in the pre- sent reduction of Mr. Fleming's service, as heir to his great C grandfather. grandfather. For the Lords will be informed, that the first: process of reduction and improbation was raised in the year 1 758; the foundation of which process, it was obvi­ ous, depended upon the propinquity of Robert Fleming to his predecessors, to whom he was charged to enter heir in special. That without objecting to the pursuer’s title in that process, days were assigned to the defenders for satis- fying the production, acts for first and second terms extrac­ ted, and the defenders ordained to satisfy the production in ten days, after which there was produced an interest al- ledged sufficient to exclude the pursuer; whereupon much litigation ensued: During which, namely, in the end of January 1759, Mr. Fleming's retour was produced in pro­ cess, alongst with a disposition of the lands of Board, and others, in favours of his great grandfather, dated 18th October 1583. Notwithstanding of all which, the reduction of Mr. Fleming's service was not brought till the year 176 1, when twenty years from the date of the service were very near expired. As the pursuers apprehend that litiscontestation has al­ ways been considered in law as a judicial contract betwixt the parties concerned, whereby the defender is understood to have agreed to subject himself to the pursuer’s claim, in case, in the process then depending, judgment shall be given for him; and that the taking the terms in the original pro­ cess of improbation, to satisfy the production, with the af­ ter procedure thereon, was a manifest litiscontestation be- twixt the parties; by which the pursuer's title to carry on that process was acknowledged by the defenders; they can­ not be thereafter admitted to impugn the same in the shape of a reduction, or otherways. It is humbly thought, that as all dilatory defences ought to be proponed before litis- contestation; so ought any objections to a pursuer’s title: And that, as no dilatory defences will be listened to after litiscontestation, neither will such objections, because they are are equally understood to he passed from by an adt of litis­ contestation, and, contrary to the nature of the contract, implied by that act to have intervened betwixt the par­ ties; and, if the pursuers are not mistaken, the court pro­ ceeded upon this principle, when they found, in the origi­ nal process still depending betwixt the present parties. " That it was not competent for the defenders in hoc stau to demand a proof of possession, before making a full pro- d u c t ion which, in the pursuer’s humble apprehension. behoved to be founded upon this, That altho’ the produc­ tion then made, joined with a proof of possessio n, would have been sufficient to have excluded them, had that pro­ duction been made, and a proof of possessio n offered be­ fore the terms were asign ed for satisfying the production, and acts extracted thereupon; yet, after such procedure, it was not competent, as contrary to the nature o f the ju ­ dicial contract of litiscontestation. And the Lords will please observe, that if it shall be found that the defenders have now no right, after the for­ mer procedure, to impugn the pursuer’s title to carry on the original process, even by bringing a reduction of that title, it does not appear with what reason they can com­ plain thereof, when it is attended to, that by their pro­ ceeding in the former process, without objecting to the pursuer’s title, they must be considered to have admitted the same to be good; and that the effect of such admission only is, that the defenders, before they prevail in the cause, must ly under the necessity of showing a right in themselves to the subjects in question; whereas, had it not been for that implied admission by the judicial contract of litiscontestation, that the pursuers title to carry on the ac­ tion was good, it would have been sufficient for the de­ fenders, ad v ictoriam causae, that the objection to the pur­ suers title had been sustained. 3dly, That 3dly, That even laying what has been hitherto argued for the pursuers of the original process out of the quest i- on, they humbly apprehend, that Mr. Fleming's service, as heir in general of his great grandfather, whereupon a re- tour to the chancery followed in due form, is a sufficient proof of the propinquity, unless that proof can be redar­ gued by the other party. The brief upon which this ser­ vice proceeded, was directed to the baillie of the Canon- g ate, a very ordinary magistrate in these cafes. The in- quest consisls of persons, against none of whom there lies any objection, some of whom are well known in the place, as will appear upon looking at their names, particularly, Mr. George Craw furd the antiquarian, who seems to have been a very proper person to be upon such an inquest, in case there had been any difficulty concerning propinquity, as having been much versant in matters of that kind. Two of the members of inquest, namely, John Jarvie of Achinbie, and Ja mes Aitkine in Kilbowe, depone affirmative upon the propinquity, as marked upon the margin of the original claim; whereupon Mr. George Crawfurd chancel­ lor, with the rest of the inquest, “ served and retoured the said Robert Fleming nearest and lawful heir to the deceast John Fleming of Board, his great grandfather, affirmative, in respect no person appeared to object, and of the de- positions of the said John Jarvie and James Aitkine.” It is humbly thought, that from the depositions of these two persons, who themselves were members of inquest, and therefore the most proper witnesses, the inquest had legal evidence as to the propinquity, whereupon they were bound in duty to serve the claimant. When witnesses de­ pone to a propinquity, it is neither necessary nor usual for them to asig n any particular cause of knowledge thereof: Habite and repute has been always esteemed sufficient in these cases, and will be presumed where no other cause ap­ pears; wherefore, it must be supposed, that those persons who who deponed upon the propinquity in this case, were at l a st satisfied thereof, from the common opinion of the neighbourhood; and that their depositions were satisfying evidence to the rest of the inquest, is evident from the ser- vice itself. Mr. Fleming, then, and his trustee, humbly apprehend, that as there has been here legal evidence of the propin­ quity brought, and such as has satisfied an inquest, who have accordingly served affirmative, such service must be available, unless the other party, who have now raised a reduction thereof, can either make substantial objections to the form of carrying the same on, or bring stronger evi­ dence, that the person served did not stand in that degree of relation to the person whose great grandson and heir he was found to be, than the evidence adduced before the in­ quest, that he did stand in such a relation to him: Nothing of which has hitherto been done, it having been only ob­ jected to the form of the service, that the pursuer’s grand­ father’s name is not expressed in it, and to the cre­ dibility of the witnesses, that in a matter so ancient, they have given no causa Scientiae, which, it is humbly thought, can never preponderate the legal evidence adduced before the inquest, and found sufficient by their verdict, as no re­ gard can be had, for the reasons above given, to the pretended retour of Agnes Fleming. At the same time, for what appears upon the face of this service, the witnesses, and members of inquest who swear to the propinquity of the claimant, might very pos- sib ly have had much stronger causes of knowledge than mere fame; as it is a certain fact, and, if denied, can still be made appear, that these persons, at the time of this ser­ vice, were about the age of eighty, and so having been born about the year 1 660, were very probably acquainted with the pursuer’s father, who died a very old man in the year 1697, and may well be supposed to have seen and D known known the pursuer’s grandfather in their younger years, and so to have understood, both from father and grand­ father, as well as from the voice of the neighbourhood, that the grandfather was the son of John Fleming of Board, to whom the pursuer was then served heir. But let it be supposed, that they had no such particular cause of know­ ledge, and that they deponed upon the propinquity mere­ ly upon its being so commonly habite and repute, which falls at least to be presumed, it is humbly submitted, if that of itself was not a sufficient ground upon which they might safely depone as to the propinquity, and upon which the inquest were bound to proceed in the service ac­ cordingly. Were it necessary to cite authorities upon this head, that of Menochius might be brought, who, in his se- cond book De arbitrariis j udicum quaestionibus, cent. 1. cas u 89. num. 86. et s eq. gives his opinion, that common fame is sufficient proof of one person’s being the son of ano­ ther, especially in matters quae difficilem probationem habent: This that author delivers as the common opinion of the doctors, for which he cites many authorities; and he like- ways mentions several statutes made in different places of Italy, Quibus (as he fays) conceditur f i lationis probatio per vo- cem et famam. And the authority likeways of Mascardus, who, vol. 1. De probationibus, con. 4 1 1. delivers his opini­ on, That fame alone is a sufficient proof of confanguinity quando agitur de probanda consanguinitate antiqua de qua non extat memoria hominum; and who likeways delivers his o- pinion to the same purpose, vol. 2. De probationibus, con. 792. The pursuers beg leave to observe upon this head, that it appears to them to be a matter that would be attended with very dangerous consequences, if, after a service is carried on, and a proof of propinquity brought by the testimonies of old witnesses in a matter so ancient as that whereupon the present question arises, any person should at a t a distance of time, when perhaps the space limited by law, within which only such service can be quarrelled, is upon the point of expiring, which is the present case, be heard in a reduction of the same after the death of those old witnesses, merely because it does not appear upon the face of the service what their causa Scientiae was. And in the fourth place, the pursuers humbly submit it to the court, if, upon the supposal that it shall appear to them that the evidence of the propinquity in this case brought before the inquest was defective, such defect may not still be supplied, by bringing what further evidence they can of that propinquity in the present process of re­ duction of that service. If at the time that service was carrying on, any person having interest to oppose the same, had objected thereto, on account of the proof of the pro­ pinquity being defective; as the judge and inquest would undoubtedly have allowed further evidence to be brought, in order to supply the appearance of any such defect, the court, it is humbly thought, will now, for the same rea- son, allow such further evidence to be brought. Upon the supposal of the competency whereof, (which indeed the pursuers cannot allow themselves to doubt of,) they, to supply any defect in the proof before the inquest, have produced the following writs: 1st, A tack, dated in the year 1628, betwixt William Fleming and Alexander Twedi whereto John Fleming son of Board, the pursuer's grand­ father, is a signing witness. 2dly, An assignation by James Harper elder to William Harper his son, of the sum of 300 merks, dated in the year 1635, whereto John Fleming o f Board is a subscribing witness, which John Fleming the pursuer avers to have been his great grandfather, 3dly, A certificate from the register of baptisms in the parish of Falkirk, bearing, “ That upon the 28th of June 1609, was baptized John Fleming, lawful son to John Flem ing son of Fleming of Board which John Fleming, the person baptized, baptized, the pursuer avers to have been his father, he ha­ ving died of a very great age in the year 1697. And the pursuers are willing still to undertake a proof, that Mr. Fleming, one of the pursuers, is at this day habite and re­ pute the great grandson and heir of John Fleming of Boardy to whom he is already served, and to condescend upon witnesses omni exceptione majores, if the court shall think that necessary, by whom he is to bring such a proof. That what the defenders insisted on, in answer to the pursuers condescendence laid before the Lord Ordinary, in substance was, “ That whereas the pursuer had hitherto claimed in the character of great grandson and heir of John Fleming of Board, he had in that condescendence called himself grandson a nd heir of the said John F le- ming, which seemed to be done of design: That the de­ fenders silence in not quarrelling the pursuer's service earlier, cannot reasonably be objected to them before that service appeared in process in January 1759, after which a challenge thereof was soon brought: That the vicennial prescription of the reduction of retours could not in this case commence but from the 13th of March 1750, when this service appears to have been retoured to the chancery: That as the pursuer, in this case, was serving himself heir to a remote predecessor, who must have died at a great distance of time from that of the service, it was his business to have attended to the witnesses giving a very special cause of knowledge, which, he not having done, the blame lies at his own door, and must create a suspicion that his claim is ill founded: That the effect of all the proceedings in the former process of reduction could never exclude the defenders from still objecting to the pursuer's title: That these substantial defects appear to be in the pursuer's service: That the claim does not name his grandfather, by whom he connected with with his great grandfather, to whom he craved to be served, which seems to be contrary to a regulation of the court, mentioned by Lord Durie, in a que- stion between the Earl of Cassils and Earl of Wigton, 22d of July 1629, and to the constant practice in these cases. That there appears to be no sufficient evi­ dence brought of the propinquity, such as to warrant the verdict of the inquest. That however propinquity may be sufficiently proved in recent cases, by being ha- bite and repute to stand in such a relation to another, that will not hold in matters so ancient. That the de­ fenders, in this case, have made it appear, by retour of the service of Agnes Fleming, as heir of John Fleming of Board her father, who, from the date of the retour in the year 1597, behoved to be the same person that is said to be the great grandfather of the pursuer, to whom the disposition in the year 1583 was granted, that that John Fleming of Board died without lawful male issue. That with regard to the writings brought, in order to support this service, the assignation granted by James Harper is plainly vitiate, where the date is said upon the back thereof to be the year 1625, which could not pos- sibly be the true date, as the bond assigned is said to be of date in the year 1631. That the name and designa­ tion of John Fleming of Board, seems plainly to have been an addition ex post fa cto, and added with the same ink with which the subscription of John Fleming is simu­ late and the vitiation made of the date on the back. That in the tack 1628, betwixt William Fleming and A- lexander Tw eedie, these words, John Fleming son ofBard seem likewise to have been ex post facto added by a diffe­ rent hand than that of the writer of the deed, and very much resembling the hand writing wherewith the addi­ tion above mentioned has been made to the assignation. That in the tack, the subscription of John Fleming, who E ' is is designed John Fleming son of Board, is spelt in a dif­ ferent manner from the subscription of John Fleming at the assignation. And that whereas the pursuer has a- verred, That John F leming his father w as commonly known by the name of Board's Oye, that may have been fact, but then he must have been his bastard Oye; which conjecture seems to be supported by the extract 28th June 1609, produced from the register of baptisms. where the person the pursuer calls his father is designed5 lawful son to John Fleming, and he again only son of Fleming of Board, without addition of the word lawful.” To all which the pursuers humbly submit the following answers to the consideration of the court: That it proceed­ ed from an absolute inadvertency, that in the condescen- dence offered to the Lord Ordinary, the pursuer Robert Fleming was designed grandson and heir of John Fleming of Board, and not great grandson to him. The pursuer stands served heir as great grandfon to that gentleman: He has, in all the proceedings hitherto, averred, that he stood in that degree of relation to him; he still avers the same: And as there is no ground to believe he could have any si- nister design in calling himself only grandson instead of great grandfon of his predecessor, in contradiction to the service itself, and the proceedings that have been made in these different processes of mails and duties and reduction, it is not very obvious how the defenders can avail them- selves of this mistake. That the pursuers will admit, that notwithstanding of the process of mails and duties, brought in the year 1742 against the tenants of the lands of Board and others, and notwithstanding of their process of reduction and impro- bation, commenced in the year 1758, the defenders were under no strict necessity of quarrelling the pursuer Robert Flemings propinquity to his predecessor, till the retour of his service was produced in process in January 1759 At the the same time they cannot perswade themselves, that the defender’s predecessor, the Earl of Wigton, tho’ he was no party to the process of mails and duties brought in the year 1742, was altogether ignorant thereo f; and upon the supposal that he knew of the same, it was certainly very natural for him to make inquiry, how the propinquity of Robert Fleming to Fleming of Board, his great grandfather, was to be or had then been instruct ed; and, if he had done so, he would have found, that the principal retour of his service was then lying in chancery, tho’ the extract thereof, now in process, was not taken out for some years after. Upon what foundation the defenders can maintain that the vicennial prescription, with regard to the reduc­ tion of services and retours, only runs from the time the extract of the retours are taken out from the chancery, which the pursuers apprehend to be their meaning, they do not well comprehend. By the act of parliament 1494, it is ordained, That all summons of error, or inordinate process, that are to be raifed by any persons that thinks them hurt be the determination of inquests, or be pro­ cess of sheriffs, led in the serving of brieves, in time to come, be raifed and pursued within the space of three years after the said process and making of retours.” From that time to the year 16 17, in which year the act of parliament anent reductions of retours and summons of error was made, it was understood, that after the lapse of three years, neither the persons of inquest could be quar­ relled for an erroneous service, nor the service itself set a- side. And as that prescription, with regard to the mem­ bers of inquest, behoved certainly to run from the date of the service, it cannot reasonably be thought, that it would commence at another period with regard to the service it- self, as the act 1494 makes no such distinction; and the act 1617, “ having declared it to have been the true mean­ ing of the former act, that the perfons of inquest should nor not ly under the danger of error after the space of three years, but should not hurt the righteous heir: And it having been therefore ordained, that the former act of parliament should not hurt the nearest of kin to seek re­ duction of retours of services, within the space of twen­ ty years immediately following the date of the said re­ tours of services; but that it should not be lawful to pursue the persons of inquest for wilful error, except they be pursued therefore within the space of three years next after the date of the said retours of service. The pursuers cannot conceive that the prescription of twenty years, introduced by that last statue, can have any other commencement than that of the service itself, as it cannot be disputed, that the three years prescrip­ tion with regard to the members of inquest, must still run from that period; and indeed, in propriety of lan­ guage, the date of the service and retour is the same; and therefore, the legislature could not have in view, in intro­ ducing that prescription, the particular time that an ex­ tract from the books of chancery of a principal retour re­ corded there, might be thence taken out by the party con­ cerned therein. The pursuers therefore, must consider the defenders in this case, as having been very negligent in delaying this challenge so long, and only bringing it when the years of prescription against the same were so near run, and the witnesses dead by whom the propinquity was proved. That the pursuers cannot agree with the defenders in this, that because Robert Fleming claimed to be served heir to a predecessor so remote as that of a great grand­ father, who must have died at a great distance of time, that therefore, it was his business to have attended to the witnesses giving a special cause of their knowledge of the propinquity: If they gave such cause of their knowledge as satisfied the inquest of the truth thereof, he apprehends he he had no more to do: And this it appears they have done, and their depositions are taken down in the common man­ ner observed in such cases. The matter’s being ancient, seems to the pursuers to be so far from being a reason why the witnesses should have given a particular cause of knowledge, that on the contrary, it is a reason why they should have given none, as supposing them to have no other than that of habite and repute; and from the authorities above adduced, it appears that the antiquity of the thing adds an additional weight to that of common fame. That the nature of the litiscontestation has been already insisted on for the pursuers, whereby it is hoped it will ap­ pear, that after the proceedings in the orginal process o f reduction, whereby the pursuer’s title appears to be plainly admitted by the defenders, they cannot now object there­ to, even by raising a reduction thereof. That the pursuers know no rule by which it is establish­ ed, that a person claiming to be served heir to his prede- cessor, should point out by name every single person thro’ whom he connects to that predecessor; they apprehend that a person may very regularly claim to be served heir to his grandfather, without mentioning in the claim the name of his father, or to be served heir to his grandfather, with­ out mentioning the name of his grandfather. They know no rule, reason or practice, whereby it is required that the names of all the persons intermediate betwixt the claim­ ant and the person to whom he claims to be served heir, ought to be expressed in the claim. The authority recited from the Lord Durie, seems to be nothing to the purpose: For there the case was of a service of the Earl of Cassills, to his fore grandsire’s grandsire, which the pursuers under­ stand to be his father’s great grandfather’s greatgrandfather, grandsire meaning great grandfather in Scotland, even at this day; and there the Lord advised the assessors to that service, that the party desiring to be served, ought to qualify and be special upon the descent, and persons intervening betwixt him and the defunct to whom he craved to be served; and also that he ought to instruct and verify the descent, which at a distance of so many generations seems to have been F highly highly reasonable; whereas, in the present case, in the pur- suer’s claim to be served heir to his great-grand-father, his father being expresly named and designed, the name of no other person is omitted but that of his grand-father, which if it is a defect, he offers still to supply by condescending upon his name; and besides, in that case observed by Du­ rie, there was an opposition made to the service, and the claimant, by means of that opposition, laid under the ne- cesi t y of condescending upon the several persons of whom he was descended; whereas, in the present case, there being no opposition made to the pursuer’s service, he did not think that incumbent upon him. That the evidence brought to verify the propinquity of the pursuer to his great-grand-father, seems to be Robbe rufficient to ju st ify the verdict of the inquest; and that the rather that the case was ancient, as it must be presu­ med, that if the witnesses had no stronger cause of know­ ledge, they had at least that of habite and repute, for de­ poning affirmative as they did to that propinquity; which cause of knowledge, as has been already observed, falls to have greater weight in matters ancient, than in such as are more recent; neither can the retour of Agnes Fleming as heir of John Fleming of Board her father, in the year 1 597, have any weight, on account of the circumstances above mentioned: That there is a decreet of certification already pronounced against the grounds and warrants of that retour; and that there is no vestige of any such grounds and warrants to be found in the records of chan­ cery; so that the pretended extract in process must be held as false. That as to the writings produced in support of this ser­ vice, the pursuers admit, that the figures (1 625) upon the back of the assignation by James Harper, appear to be late­ ly done, but to what that was owing, they will not take upon them to account: The true date of that asi g nation seems to have been in the year 1637: The name and de­ signation of John Fleming of Board, insert as one of the witnesses to that asignation, tho’ it seems to be written with % t with different ink than that of the rest of that writ, and may have possibly been adjected after the same was wrote out, before the subscriptions were adhibited thereto; yet it has all the appearance of being writ by the same hand who wrote that assignation, is plainly a very ancient hand, and different from that by which the figures (1625) have been wrote on the back of that assignation. The pursuer’s likeways admit, that in the tack 1628, the words John Fleming son of Board, have some appearance of being adjected some time after that tack was wrote: But as these still appear to b e of the same hand writing with the rest of the tack, it must be presumed these words were adjected before the tack was signed: That what the defen­ ders say, that it seems to appear from resemblance, that the additions in both these writs is made by the same hand, is without any kind of ground; these hand writings, upon ocular inspection, appearing to be quite different: That it is true, the syllabication of John Fleming, who signs as a witness to the tack 1628, is different from that of John Fleming of Board, who signs witness to the assignation in the year 16 35; whence it is very reasonable to conclude they were different persons: And the pursuers aver, that John F leming of Board, who signs witness to the assignation in the 1635, was Robert F leming the pursuer’s great grand­ father, whereas John Fleming son of Board, who signs witness to the tack in the year 1628, was the pursuer’s grandfather, and the father of John Fleming, who, by the extract from the register of baptisms, appears to have been baptized upon the 28th of June 1609; and as to the defenders supposal, that the pursuer Robert Fleming's father was the bastard, and not the lawful oye or grandson of John Fleming of Board, that is a conjecture without the least fupport: For as to the extract from the record of baptisms, nothing was more natural than to enter in that record the person baptized as the lawful son of his father and mother, who both are named in the record, and whose marriage must have con­ si sted with the knowledge of the parish clerk; one of the designs, it is believed, of that regifter being, that it should appear Appear therefrom, what of the persons baptized are lawful issue, and what not: But as by the entry of John Fleming the pursuer’s father, his baptism in that record, id non age- batur, to show the legitimacy of John Fleming the father of the person baptized, to John Fleming of Board his father, it was not the clerk's business to design him likeways law- ful son of his father, but to give him the appellation that every lawful son commonly goes by, that is fimply, the s on of Such a one his father. This possibly may have been the reason why the infant baptized was designed lawful Son of his father, and the father only designed Son of Fleming of Board. But at the same time it appears to the pursuer more probable, that in recording this baptism, the session Clerk did not imagine that the word Son could mean any thing else than the words lawful Son, and therefore used the one expression as entirely of the same meaning with the other, which the pursuers think was extremely natural, and agreeable to the common acceptation of the word Son. Upon the whole, the pursuers humbly hope the Lords will be of opinion, that the defenders in the original action of reduction and improbation presently depending betwixt these parties, have no right, upon one or other of the grounds above mentioned, to challenge the service of Fleming, one of the pursuers, to John Fleming of Board his great grandfather: That supposing them to have a right to bring such a challenge, the proof of the propinquity ad­ duced before the inquest of the pursuer to his great grand­ father, greatly preponderates what has been alledged by the other party to redargue that proof: And that, at any rate, it that proof shall appear to be in the least defective, the court will allow the same to be supported by the pursuer’s adducing further evidence in this process, that he has ever been est emed the legitimate great grandson and heir of Fleming of Board, and all other circumstances that any way tend to astruct that propinquity. ' 1 In respect whereof, &c. D A V I D G R AEME.