THE Laird of Pourie hath thought fit to protest against the Lords of Session, and trouble the Estates of Parliament for remeid of Law in one of the easiest and plainest cases that possibly could occur, and for its importance unworthie of the Trouble of this Honourable Court, and which is shortly thus, The Lord Gray in February 1666, dispones to Pourie for the summ of 21000 Merks the Craige of Brughtie, with the Salmond-Fishing, Syze-Fish, and other Fishings belonging thereto, and oblieges him to infeft Pourie in the foresaid Craige with the Fishings; and to warrand this Infeftment at all hands. And Pourie was thereupon Infeft under the great Seall, and entered in possession accordingly.

But Pourie exacting the Syze fish accustomed to be payed, with more then ordinary Rigour, provocks the Earl of Panmure to whose Lands four of the Boats lyable in the Syze fish pertained, to raise Declarator of Immunity, and tho that Pourie did likewayes raise a Declarator of Servitude on his part; Yet Panmure prevails and is assoilied, Whereupon Pourie pursues the Lord Gray upon his [...] the Syze fish of the said four Boats, And the Lords having heard both parties, did most justly find almost in one voice, that the foresaid pretended Eviction was no ground of Recourse. Against which Sentence Pourie protests, and now applyes to the Parliament for Remeid of Law.

And for the Parliaments better Information, and the satisfaction of all men in this case. It is to be adverted. 1mo. That all payed by Pourie for the Craige of Brughtie, with the Salmond Fishing, Syze Fish, & other Fishings there­to belonging, was 21000 Merks, whereof there was a 1000 Merks payed to a certain Person to procure to Pourie this bargain; So that all that was payed to the Lord Gray was neat 20000 Merks, and for which he got of Rentalled Estate 1200 Merks, and a Hogshead of Wine for the Salmond Fishing, and 230 Merks, with a Barrel of Salmond of a Few duty, and this by and attour the Syze Fish, which is the subject of this Contraversie.

2do. That the Syse Fish is not expresly mentioned in the Old Rights: But the Lord Gray and his Predecessors having come in use to uplift them, Pourie would have them Insert in his Disposition, tho there was no more intended by the bargain, but that Powrie should have the Craig of Brughtie, with the Sal­mond Fishing, and other Fishing, and pertinents thereto belonging. 3tio. To Evince that the Syze Fish was only exprest in the Disposition made to Pourie as a pertinent, and with the hazard of its belonging or not belonging, is evident from the rental, the Rule of the Barrony, whereof the Syze-Fish makes no Artickle, because it was in effect only disponed as a pertinent possest, but without any assurance of Right. And 4to. It is to be adverted, that the [Page 2]whole Syze Fish of the Four Boats is not in truth worth more than fourtie Merks, tho Pourie Lybels them at 400, and for to Prepossess the Members of Parliament, he has Printed and Dispersed one of his Old Informations before the Lords, which the Lords did most Justly Judge to be of no moment; And therefore to sustain the Lords Sentence, The Lord Gray alledges.

First, That the Syze fish not having been principally disponed, but only ad­jected as a Pertinent without any express Limitation, either as to the number of the Fish or of the Boats, The Eviction or rather the declaring any of the Boats free can never be a ground of Recourse of Warrandice, & the Reason is, Because that Warrandice is given and intended for that which is principally and cer­tainly disponed, but was never yet construed to extend to what was only dis­poned Accessorie by way of Pertinent, and the Ratio Rationis, is because what is disponed Accessorie, and by way of Pertinent, is only disponed with the hazard, and in the Supposition, That if it be pertinent well and good, and if not, the Disponer is not lyable, because he disponed it only as a Pertinent, and this is clear in the Ordinary case of Mens disponing Lands with the Perti­nents, or with Moss, Muirs, Fishings, and other Pertinents, where it is most certain that as to all these Pertinents disponed only Accessorie and not principallie, the Disponer is no farder lyable then to make over his Title, and if any of them be found not to be pertinent the Disponer is free, because all intended was to dispon what was pertinent, and as such and no farder, which ground being applyed to the Case in hand; It is evident that the Syze-fish in the Lord Grays Disposition was only disponed Accessorie; And as pertinent, for the Words are plain, Viz: With the Salmond Fishing, Syze-Fish, and other Fishings thereto belonging, Or thereto pertinent; Which are the same thing, and the expressing of the Syze-Fish signi­fies nothing, since it is only disponed as pertinent, nor can it be alledged with any colour, that the word belonging or pertinent doth only affect the words, (And other Fishings) immediatly preceeding, & not the Syze Fish; For it is evident as the light, that the words belonging or pertinent doth affect, and is a qua­lification of both.

Nor can it be held for a Rule, that whatever is Disponed expresly, and for an onerous cause falls under the warrandice; Because it is evident, that if any thing (tho never so express) be only disponed by way of pertinent. It falls no farder under the warrandice, save to oblidge the Disponer, that he has not done any thing in prejudice of his Title, talis qualis, and such as it is; But the true Rule of Law is, that these things do only fall under absolute warrandice, which are disponed for an onerous cause, principally; certainly, and absolut­ly, and not with the qualification of pertinent, which in all sense as well as Law, doth perpetually import its own hazard, and never falls under absolute warrandice.

2do. For farder clearing of the undoubted ground of Law above laid down; It is to be remembred, that the Syze Fish are neither in the Old Rights, nor were they in the Rental of Pouries bargain, nor were they precisely defined either as to the number of Fishes or Boats, but were only exprest at Pouries de­sire, and disponed as belonging, or pertinent to give him a Title talis qualis, & as his Author had, but no wayes to oblidge his Author in absolute warrandice, which can never with any shew of Sense or Reason be applyed to anything which is only disponed as belonging or pertinent; And this is so certain that when ever it is intended, that any thing disponed, as pertinent, should fall under the absolute warrandice, It is then expresly provided, that the Disponer shall warrand it to be pertinent, But if it be only disponed as pertinent with­oute the foresaid express provision, then in all Law and sense the words Belong­ing or pertinent are taxative qualifieing the right, and plainly importing that [Page 3]the thing is only disponed with the hazard and Talis qualis, as it is, which is exactly the Lord Gray's Case, as to the Syze-Fish disponed as pertinent, or belong­ing, as said is.

3tio. The Castle of Bruchtie was disponed with the Syze-Fish thereto be­longing, And to evince that the Words thereunto belonging, do affect, and qua­lifie the Syze-Fish, is evident from this Ground, That the Syze-Fish, without the said Restriction, is indefinit vague and uncertain, which cannot possibly be the Subject of Warrandice, unless the Syze-Fish had been specified and de­termined by the number both of Fish and Boats; And this is so certain, that if we put the Case, that the Disposition had been of the Craig of Brughtie, with the Syze-Fish and no more; Must not all Men have understood it of the Syze-Fish thereto belonging? For otherwayes to understand it of all the Syze-Fish whatsomever, had been plainly absurd, seeing then, That the Syze-Fish dis­poned, must be understood taxative of the Syze-Fish belonging or pertaining to the Craig: With what colour of Reason can it be asserted, That the Words thereunto belonging, do not affect the Syze-Fish, when the Syze-Fish cannot be otherwayes understood; And therefore since the Syze-Fish were only Disponed by the Lord Geay, as belonging or pertinent; It is evident that they were dis­poned with the hazard, and do not fall under the Warrandice, specially see­ing that albeit four Boats be declared free, yet there are six Boats yet remain­ing, which is more then sufficient to sustain the Lord Gray's Disposition; Seeing in Plain Scots, his disponing of the Craige of Brughtie, with the Syze-Fish thereunto belonging, was neither less nor more, but with the Syze-Fish, whereof the Lord Gray was then in the possession, & which he was willing to dispone as Pertinent. and transmit what Right he had with the hazard, and so can never fall under the Clause of absolut Warrandice.

4to. And for super abundance, it could be demonstratt, (if needfull) That Pourie succumbed in his Declarator against the Earl of Panmure through his own Default and mismannadgement of the Process, in so far as the Lord Gray having furnished the Pursuer with two old witnesses, who would have deponed upon more as 60 years Possession, if they had been interrogat there­on; And de facto, one of the Witnesses; did depone upon sixtie years Possession, and the other concurring Witness having only deponed in general terms, that the Possession had been since his Memorie, and Pourie having neglected to interrogate him upon particular years, albeit he was aged 80 years; Yet the Lords found that the memorie of man in general, is not to be extended above 40 or 50 years at most, from which 50 years 7 years of Panmures Minority being substracted, and four years that Pouerie had a Woodset, and Possest the Lord Panmures Land, affected with the servitude, being also subduced upon that principal in Law, that res sua Nemeni servit, which brought the Lord Gray, and his Authors Possession to 39 years allennarly, and so not compleat­ing the prescription, was the direct occasion of Panmures Decreet of Immuni­ty; From which the Defender argues two things. 1mo. That the objection was personal against the Pursuer ( nam exceptiones ex persona emptoris objectae si obstant venditor de evictione ei non tenetur Leg: 27. ff: de evic:) 2do. That the immunity is personal to the Earl as to his own proper lands, whereas the other Heritors who have no Minority, or personal objection against the pur­suer, are still subject to the exaction.

But the Lord Gray refers himself to the plain grounds of Law and Reason above laid down, which he is confident are so strong and pregnant for maintain­ing the Lords unanimous sentence, that the Parliament will-find it was optime judicatum; And that Pourie for his groundless and wilful protesting, and o­blidging the Lord Gray to so great expences and trouble in defending this so unconsiderable and trivial affair, both before the Session, and now before the Honourable Court of Parliament, ought to be condemned in large expenses.