Petition 1766

' '• December 9, 1766, r Unto the Right Honourable the Lords o f Council and Sessiont i T H E P E T I T I O N O F % J O H N E a r l o f ' • 9, 1, 7 6, T 9 H EO 9 F 9 J O H T HAT after many years possession of the small estate of Shian, upon the titles to be hereafter mentioned, derived from the former proprietors of said estate, your peti- tioner is disquieted therein by a process of exhibition, ad deliberandum, at the instance of Mary and Margaret Murrays, upon the title of their apparency, calling for exhibition and production of all titles, writs, and evidents, of and concerning said lands, granted to or in favour of their ancestors, and of all other writs and evidents whereby any of their said predecessors were diverted or denuded of said estate, and of all deeds granted by any of their said predecessors, whereby the said estate is or may be burdened or affected; and, generally, all and sundry writs concerning or rela­ tive to said estate of Shian, or any other heritable estate, or effects, to which they the pursuers, as apparent heirs foresaid, may suc- ceed; to the end that they may deliberate, whether it is expedient for them to enter heir to these their predecessors. It will readily occur, that the exhibition required by this summons is by far too vague, general, and extensive; but as that has not hitherto been the subject of debate, it would be improper to lay more upon it at present. Though this is the professed purpose of the aforesaid process, it is morally certain, from the bankrupt situation of this estate, and the great load of debts affecting the same, which now all centre A_ in in your petitioner s person, in aid of the voluntary rights by him acquired, that nothing further is, or can be in view, but to com­ pel your petitioner to redeem himself from the trouble and vexa­ tion of this process, by payment of a sum of money, after that he has already paid above double the value of the estate; and where that is the case, it will not be matter of surprise, that your peti­ tioner should not be disposed, as far as the law will protect him. to lay open his charter-chest to the inspection of those pursuers, for a discovery of any defects or flaws that may be found therein, how­ ever confident he may be, that upon trial none such can be found that will benefit or avail the pursuers. Processes of this nature, however frequent in former times, have fallen pretty much in disuse since the statute of 1695, introducing the beneficium inventarii; whereby apparent heirs purposing to as- sert their right to their predecessors estate, have an easy method to come at the same, without incurring an universal passive title, by entering cum beneficio; which answers all the ends and purposes that were intended in the more ancient practice, by processes of ex- hibition ad deliberandum. And though your petitioner does not thereby mean to say, that such process is not still competent; yet as, in the nature of things, they must be attended with very great in- conveniencies to third parties, they do not merit the same degree of favour as they might have been intitled to when no other remedy was competent. * This process coming in course before the Lord Gardenston, there was produced for your petitioner such rights as he was advised were sufficient to exclude the pursuers title; as from these it ap- p e a red th a t their predecessors, to whom they must connect, was it still in their power to make up a title to said estate, were denuded thereof, by voluntary conveyances, for a ju st and true price: and consequently, that the action ad deliberandum was thereby ex- cluded. J A condescendence of these singular titles was accordingly exhi- bited; to which the pursuers made answers; and your petitioner replied. Upon advising of which, the Lord Ordinary, by interlo­ cutor 4th February 1766, was pleased to find, “ That your peti- tioner had not produced sufficient to exclude; and' therefore that he must take a day to depone in the exhibition.” And up- on advising representation and answers, his Lordship pronounced his other interlocutor, 15th Ju ly 1766; “ Finds, That the de- “ fender fender Lord Braedalbane’s production only instructs that he has the right of an adjudger, which cannot bar the heir-appa­ rent’s right to insist in an exhibition ad deliberandum; therefore adheres to his former interlocutor; and refuses the desire of the representation.” And upon advising a reclaiming petition, and answers, your Lordships were pleased to adhere, by interlocutor 27th November 1 766. Of these interlocutors your petitioner takes the liberty to pray your Lordships review; and as the ratio decidendi expressed in the Lord Ordinary's last interlocutor, adhered to by your Lordships, is, that your petitioners production only instructs that he has the right of an adjudger, he proposes to show, in the first place, from the date of his title-deeds, that such is not truly the case; for that, independent of the adjudications standing in his person, the voluntary rights granted by the former proprietors of this estate to his the petitioner’s authors, in whose right he is intitled to plead, are 'per s e relevant to exclude this process of exhibition ad deliberandum; and s eparatim, he will maintain, in point of law, that, had he no other title but his adjudications, whereof the legals are long ago ex­ pired, these would also be sufficient in the present cafe to exclude.this process. James Menzies of Shian, who stood vested in this estate in fee simple, ■ did, of this date, execute a deed of settlement in favour of himself and the heirs of his own body; whom failing, to the heirs-male to be procreate between Janet Murray his niece, and Alexander Menzies in Buchantie her husband; whom failing, to his own-nearest heirs and asignees whatever. The very next year the said James Menzies intermarried with Helen Graham, and, by the marriage-contract passed upon oc- casion thereof, did, in virtue of the powers reserved to him by the former settlement, provide the estate to the heirs-male to' be pro­ create of that marriage; which failing, to the heirs-male to be pro- create of his own body in any after-marriage; which failing, to the heirs-female, without division, to be procreate between him and the said Helen Graham; which also failing, to his own nearest and lawful heirs and asignees whatsoever. The pursuers contend, That this destination of succesio n in the marriage-contract 1692, imported an alteration of the prior s ettle- ment in 1691, in so far as, that, failing heirs of James Menzies’s bo­ dy, the right of succession would have devolved upon his heirs- ■> general general and of line, under the aforesaid ultimate destination, to his own nearest heirs and asignees whatsomever, preferably to the particular heirs; who in that event were called to the succesio n by the deed of 1691. And though this does not seem to have been the sense and understanding of the parties interested therein, when the succesio n opened by the death of James Menzies in 1699 without issue, your petitioner shall, in the present argument, suppose the settlement contained in the marriage-contract 1692, is to be held the governing rule of succesio n; and, upon that supposition, will endavortshw,il s produced for him, both volun­ tary and legal, must exclude this process of exhibition ad delibe­ randum. It is an agreed, fact, That upon James Menzies’s death without issue in 1699, his grandnephew James Menzies, eldest s on pro­ create of the marriage between the aforesaid Janet Murray and Ale­ xander Menzies, entered upon the estate as heir of provision by the tailzie 1691; and that upon his death without issue, he was suc- ceeded by his brother Archibald, the late Shian, who lived down to the year 1 746. This right of succesio n was contested by Alexander Murray Shian's nephew by his sister, and grandfather to these pursuers who, as heir-general and of line to old Shian, founded his plea upon the marriage contract 1692, as importing an alteration of the desti­ nation o f succesio n by the prior settlement 1691; and in the view of asserting his right to the estate, he obtained himself served and retoured l e g i t i m u s et propinquior haers dictquondam Jacobi Menzies sui avunculi;and by means thereof, as your petitioner is in the se- quel to maintain, did establish in his person the unexecuted procu­ ratory, and personal right to this estate by the marriage-contract 1692, whereof the last termination, as already mentioned, failing heirs of Shian's own body, was to his heirs and asignees whatsoe- ver. These preparatory steps by Alexander Murray the heir of line to assert his right to this estate, terminated in a transaction between him and Archibald Menzies, the heir of provision under the deed 169; the result of which was, that Alexander Murray, at the sight, and by advice of his father, and other friends signing witnesses thereto, executed a disposition of the estate in fa vour of Captain James Menzies of Comrie, a near relation of the* family, and trustee for Archibald Menzies, the heir of provision un- der der the deed 169 1, and who then was in possession of the estate: and as this disposition acknowledged the receipt of a certain sum of money paid by Captain Menzies for granting thereof, and contain­ ed an assignation to the writs and evidents, and to the rents for the ensuing crop, with clause of absolute warrandice, no doubt can be entertained of the fairness of this transaction, execute at sight of the common friends, for sopiting the disputes that were then likely to arise between these two heirs; and that the same was effectual to transfer to Captain Menzies all right which Alexander Murray, the heir of line, had to said estate, can admit of no dispute. Another upstart competitor for this estate having at the same time appeared in the person of William Menzies, a remote collate­ ral heir-male, who claimed under the ancient investitures devised to heirs-male, Archibald Menzies entered into a separate transaction with him, and took from him a disposition for all right that he had to said estate, in name of the said Captain Menzies: and upon both these dispositions from the heir of line, and heir-male, Captain Menzies expede an insestment in the year 1700. But as Captain Menzies was in reality but trustee in the pre- misses for Archibald Menzies, in whom all the aforesaid rights did now centre, and who still continued possessor of the estate, Captain Menzies of this date granted an obligation, whereby he became bound to denude of the rights that stood in his person, in favour of the said Archibald Menzies, and to grant all such rights as might be necessary for denuding him thereof. And in implement of said obligation, Captain Menzies, by dis­ position of this date, conveyed to Archibald, and his heirs there­ in mentioned, the said lands and estate of Shian. And in 17 27, John Murray, who was then become the heir o f line, by the death of his father Alexander Murray, the father of these pursuers, granted a corroborative disposition of said estate in favour of the said Archibald Menzies; and upon the precept of seisin therein contained Archibald Menzies was insest. From this deduction of the petitioner’s title-deeds, so far as they depend upon voluntary rights granted by the pursuers predeces- sors, your Lordships will have observed, that every right which was acclaimable by, or did belong to all and each of the aforesaid heirs, was vested in the person of the said Archibald Menzies; and more particularly all right competent to Alexander Murray, qua heir of line under the marriage-contract 1692.- B The The late Earl of Breadalbane had, for a course of years, proved the chief support of this family, in their distressed situation, from the great load of debt to which this small estate was subject, and from time to time had advanced what sums were necessary to clear off the most presing debts, and amongst these a great arrear which had been incurred of the Lady Shian's liferent-annuity of 1200 merks, upon which every kind of diligence had been threat- ened; and as this burden would still increase, by the subsequent years annuity, so long as the lady lived, the Earl was applied to to purchase said liferent-annuity, both for bygones due from 1707, and in time coming, and got an assignment thereof in his favour. This imbarrrassed situation of the affairs of this family produced a contract, of this date, between the said Archibald Menzies and the late Earl of Breadalbane; whereby it was contracted and a- greed, That the Earl should lead an adjudication against the estate of Shian, not only for the bygone annuities then due from Whit- sunday 1707, to which the Earl had right, and which then a- mounted to no less than 18,000 merks, but also for security of the current and subsequent annuities, as the same should fall due during that lady's lifetime: That the Earl should execute a deed of settlement of said estate upon the said Archibald Menzies and his heirs-male; which failing, to return to the Earl himself, and his heirs-male and of tailzie. That Archibald Menzies an dhis heirs-male should, notwith- standing the great debts due to the Earl, be allowed to continue possession of said estate; that they should also have power to burden the same to the extent of 20,000 merks, and to make suitable provisions for their wives andughtr.Foc,pAblMzmfE'yL496:1Sk-x. Tilt7,'jsrfcae50 incurred, besides those in time coming, during the life of this la­ dy, who lived about eight or nine years longer. But as Shian was not in condition to pay up the whole L. 4966: 13: 4, the sum covenanted to be paid by him, a ba­ lance whereof remained due at his death, and had failed to esta- blish the proper titles in his person, for granting the renuncia­ tion of the wadfet, though he had actually ceded the possession thereof, the aforesaid contract was not carried into complete exe­ cution, but which remained still binding upon the parties and their heirs.. /! • Besides the debts above mentioned, Archibald Menzies contract­ ed other debts to the full extent of the 20,000 merks, the sum with which he was allowed to burden said estate, by the contract with the late Earl of Breadalbane; and likewise provided his lady in a jointure of L. 50 Sterling, which was near to the yearly value of the whole estate. By Archibald Menzies's death without issue, in 1746, the suc- cession to said estate, in terms of the above mentioned contrac t and clause of return therein contained, opened to the Earl.' Shian's other creditors made a claim against the Earl for pay­ ment of the debts to them severally due, in consequence of the. powers granted to Shian by the above-recited contract, to charge the estate to the amount of 20,000 merks. This produced a submission, between the Earl, and the widow, and these creditors, to Mr James Ferguson, now Lord Pitfour and by the decreet-arbitral thereupon pronounced, the Earl was de­ creed to pay to the widow' and creditors 22,000 merks more; which he accordingly paid, with interest from Whitsunday 1749, the time of his entering to the possession of the estate; and took con­ veyances from the creditors in his favour; and besides this large sum the Earl was at the same time obliged to pay about L. 400 Sterling to Sir Robert Menzies for two preferable adjudications standing in his person against the estate, for some old arrears of the lady’s annuities, incurred prior to Whitsunday 1707, the pe­ riod from which the Earl’s right commenced; so that, independent of all the voluntary rights, he stands at this moment a creditor up­ on the estate, supposin g the voluntary right could be set aside, in sums double the value o f the estate. And as from this it must be apparent how desperate a game the pursuers are attempting, it will ju st i fy your petitioner in his endeavours to avoid involving himself in- in so troublesome and expensive a law-suit, if the law will support him; and it is in this view only that he pleads his exclusive rights 'in bar of the present action. G And as an introduction to the argument hereafter to be stated, he will assume the following propositions as incontestable prin­ ciples. — 1st, That in the question, Exclude or not? he is intitled to avail himself, not only of those rights of property which stand in his own person, but also of those of any of his authors from whom he derives right, 2dly, That whatever right would be available to ex­ clude the pursuers, were they actually entered heirs to their predeces- sors, must, a fortiori, be effectual to exclude a process of exhibition ad deliberandum, as the right of an apparent heir can never be stronger than the right of an heir actually entered. And in order to explain what is thereby intended, holding the marriage-contract 1 692 to be the effectual settlement of this estate, and in so far derogatory to the prior settlement 169 1, which is the cardinal proposition maintained by the pursuers, your Lordships will recollect, from the above deduction of the case, that as by that marriage-contract, failing issue of Shian’s body, the estate stood limited to his heirs general and of line; and as Alexander Murray, this pursuer’s grandfather, and nephew to Shian, became the heir general and of line, upon Shian’s death without issue, he was accordingly served and retoured legitimus & propinquior haeres to his uncle Shian. And taking it for granted, that by means of this service, the personal right to this estate, under the marriage-contract 1692, was vested in the person of Alexander Murray, who thereafter con­ veyed the same to Captain Menzies, the trustee for Archibald Menzies, and who accordingly denuded thereof in Archibald Menzies' s favour, who entered into the aforesaid contract 1723 with the late Earl of Breadalbane, in whose place your petitioner now stands, if the titles thereby estab lished in the person of Archi­ bald Menzies and Captain Menzies would be suff icient to exclude the pursuers title, and to bar this action, was the question either with Archibald Menzies or Captain Menzies, the petitioner must be equally intitled to plead their rights, as in bar of the present process, though the contract 1723, between the late Earl of Bread- albane and Archibald Menzies, has not hitherto been carried into full execution, by Archibald Menzies’s failure to perform what was prestable upon his part by said contract. This This principle does not seem to be disputed on the part of the pursuers; but they were pleased to object, That the service of their grandfather Alexander Murray, tanqum legitimus et propinquior haers­ to his uncle Shian, was an improper service, and ineffectual to carry the personal right to this estate under the marriage-contract 1692: That he ought to have been served heir of provision under that marriage-contract; and consequently, that the after disposi- tion by him to Captain Menzies, the trustee of Archibald Menzies, was an ineffectual deed, as flowing a no habente. If this objection is founded in law, the consequences raised upon it will no doubt follow, but the petitioner cannot discover upon what principles of law or ju stice this objection can be maintained; on the contrary, he is advised, that this was the only legal and proper manner which Alexander Murray the heir of line could take to e- s t blish his title to this estate under the aforesaid marriage-contract: the special provision or destination therein contained was spent by the failure of issue of Shian’s body; failing these, the right of suc- cession was granted to Shian’s heirs general and of line; so that when Alexander Murray was served and retoured legitimus et pro- pinquior haers to his uncle Shian, he was served in the only cha­ racter under which he could possibly take that estate, and every o- ther estate devised to heirs general and of line. That cognition and service did necessarily imply and find a failure of issue of Shian’s body, as without that Alexander the nephew could never be the propinquior & legitimus haeres; and the character being thus found to vest in him, it is the operation of the law that gives to the person so served every estate that belonged to him under that charac­ ter; and it is a manifest paradox to say, That a service tanquam legiti- mus e t propinquior haeres does not prove the person so served to be the heir general and of line, and consequently carries every personal right of lands devised to such heirs. This proposition appears to the petitioner so clearly established, both in the principles and practice of the law of Scotland, that in lieu of all further argument, it shall suffice to mention an unanimous decision of vour Lordships the other day, in the competition about the estate of Lanark. The case of which was, That Mungo Haldane of Gleneagles, in im­ plement of a contract between him and his brother Patrick, did, of this date, execute a disposition of the lands of Lanark, and others therein, mentioned, “ in favour of Patrick, and the heirs-male of his body, 1 C “ and and assignees whatsoever; whlk failing, to return to the said Mungo Haldane, and the heirs-male of his body; whilk failing, to the heirs-female of the body of Patrick, the eldest succeeding without division; whilk failing, to the said Mungo Haldane his nearest and lawful heirs and assignees whatsoever; whilks failing, to his heirs whatfoever.” Patrick died in 1686, without executing the procuratory or precept contained in said disposition; and in 1693 John, the son of Patrick, was served and retoured heir in general to his father, legitimus & pro- pinquior haeres; and as thereby carrying the unexecuted procuratory in the disposition 1675, he, of this date, expede a charter under the great seal, and was thereupon insest. In 1746 J ohn executed a disposition of said estate of Lanark, in fa­ vour of his second son Patrick; — and in 1757 Patrick executed a dis­ position of said estate in favour of his six sisters, equally among them. T hese dispositions by John to Patrick, and by Patrick to his sisters, were challenged by Mr Patrick Haldane advocate, the eldest grand- son and heir-male of Mungo Haldane of Gleneagles, the original dispo- ner, and as such, heir of provision, or of return under the disposition 1675; and he obtained himself to be served accordingly. This produced mutual processes of reduction and declarator between the said Mr Patrick Haldane and the ladies; which coming to be deba­ ted before the Lord Auchinleck Ordinary, the point principally disputed was, Whether John, by his general service tanquam legitimus & pro- pinquior haeres to his father Patrick, did carry and vest in him the per- sonal right and unexecuted procuratory in the disposition 1675, thereby to validate the posterior voluntary and gratuitous disposition 1746, which he had granted in favour of his second son Patrick? or, e contra, whether it was not necessary that he should have been cognosced and ser- ved heir of provision under the disposition 1675? Your Lordships will easily perceive, that that cafe was preciselv si mi- lar to the present, and the arguments then pleaded for Mr Pa­ trick Haldane were identically the same with those that are now plead­ ed for the pursuers in this action: That the service, though of the right heir, and in whom both characters vested, tanquam legitimus & pro- pinquior haeres, was ineffectual to carry the personal right and unexe­ cuted procuratory in the disposition 1 675; and that a service as heir of provision under that deed, was essential and requisite to carry the same. Upon Upon this point the Lord Auchinleck Ordinary pronounced the following interlocutor. “ Finding, That as Patrick did not expede a seisin upon the precept contained in the contract 1705, John his son. upon the father's death, made up a proper and legal title to the personal right which was in his father, by obtaining himself served and retoured heir in general to his deceased father; whereby he is cognosced legitimus et propinquior haeres dicti Patricii Haldane, ejus patris;which ascertained upon record, not only his universal right, but also that he was heir-male of the body of Patrick, and superseded the necesi t y of a service as heir-male.’ And as this interlocutor was adhered to by two subsequent interlo- ' cutors, 1 8th February and 6th March 1766, they were s impliciter affirmed by your Lordships upon advisn g a reclaiming petition and answers. The case in hand is so much stronger than the case referred to, that by the marriage-contradt 1692, the estate of Shian, failing heirs of Shian’s body, was devised to heirs whatsoever; that is, to his heir general and of line; and accordingly, upon Shian s death with- out issue, his nephew Alexander Murray was served legitimus et propin­ quior haeres to his uncle: whereas in the case of Lanark, the dispo- sition was to Patrick, and the heirs-male of his body; and John the. son of Patrick, instead of serving heir male, or heir of provision un­ der the disposition 1675, served himself legitimus et propinquior haeres to his father. But as both characters centered in him, and as his service tanquam legitimus et propinquior haeres to his father, did neces- sarily imply that he was his fathers eldest son, and consequently heir-male to his father, your Lordships had no difficulty to find, that that service was effectual to carry the personal right and unex­ ecuted procuratory in the disposition 1675; and consequently to va­ lidate the posterior voluntary gratuitous dispositions by John to his second son Patrick, and by Patrick to his sisters. And if it was rightly so found in that case, it seems, with sub- misio n, imposib le that your Lordships in the present case can find, that Alexander Murray’s service tanquam legitimus et propin­ quior haeres to his uncle Shian, did not carry the personal right and procuratory in the marriage-contract 1692; whereby, failing heirs of Shian’s body, the estate was devised to heirs general and o f line. It was under that precise character that Alexander Murray was ser­ ved; and as that service did necessarily imply that Shian had no issue, it does not occur to the petitioner what objection can lie to C, 2r that that service to carry the personal right under the marriage-contract 1692: and if the right was thereby vested in Alexander Murray, the after disposition by him to Captain Alexander Menzies was an effectual conveyance. * The application of these principles to the case in hand is obvious. Alexander Murray, the pursuer's grandfather, the proprietor of this estate, was denuded thereof in favour of Captain Menzies, the tru- stee of Archibald Menzies; to whom he afterwards conveyed the same. It thereby ceased to be the haerditspn of these pur­ suers; to which their apparency therefore can give them no title. And as this must have been effectual to bar any action at the pur- suers instance, supposing they were actually served heirs to their grandfather Alexander Murray, multo agis ust it be available to exclude an action of exhibition ad deliberandum, so far as regards this estate. For as to the observation made on the part of the pursuers, That they were also heirs-apparent in this estate, under the disposition granted by Captain Menzies to Archibald Menzies; as the pur­ suers themselves seem to lay no great stress upon this, it admits of an obvious answer, viz. That as Archibald Menzies remained pro­ prietor of this estate, so by the contract 1723, between him and the late Earl of Breadalbane, most onerous on the Earl’s part, he not only took the Earl expressly bound to lead an adjudication upon the debts in his person, and to execute a new disposition in favour o f Archibald, and the heirs-male of his body, remainder to the E arl himself, but did further oblige himself to complete the feudal titles in his person, and thereupon to make resignation in the same terms with the disposition which the Earl was bound to grant; which con- tract must therefore be equally available against the pursuers as heirs-apparent to Archibald, as it would have been had the question been with Archibald himself. And therefore, to conclude upon this point, if your Lordships shall be of opinion, that Alexander Murray’s service timus et propinquior haeres to his uncle, did carry the personal right, and unexecuted procuratory in the marriage contract 1692, and consequently that Alexander’s disposition to Captain Menzies was a valid conveyance of that right, there is an end of the question, as the pursuers cannot be apparent heirs in an estate which their grandfather conveyed to third parties. But as the ratio decidendi expressed in the Lord Ordinary’s last in­ terlocutor, terlocutor, adhered to by your Lordships, bears, that the produc­ tion made for your petitioner does only instruct his right to be qua adjudger, and that this is not sufficient to exclude the exhibi­ tion ad deliberandum, the petitioner can neither agree to the fact as thereby supposed, nor to the consequence railed upon it. Were the titles less complete than they are in the Earl’s person, he is intitled to plead in the right of his authors; and it has been already shewn, that the right was properly established in the person of Captain Menzies, by the disposition from Alexander Murray; and again in the person of Archibald Menzies, by the disposition from Captain Menzies. But allowing, for argument’s sake, that the petitioner was only intitled to found upon his adjudications, whereof the legals are so long expired, it does not occur what difference it should make in the present question, whether the right is by legal or voluntary conveyance. An adjudication is a conveyance by act of the law', equal in every respect to a voluntary conveyance, with this only exception, that it is redeemable within a limited time; that time being elapsed, it becomes an irredeemable right; and therefore, as a voluntary conveyance by the pursuers predecessor would un­ doubtedly exclude the exhibition ad deliberandum, the legal con­ veyance by adjudication, after expiry of the legal, must have the sam e effect. The pursuers, in their answers to the former reclaiming petition, st ated a variety of facts, unsupported by any evidence, whereof the tendency was to prove, that the debts and diligences acquired by your petitioner’s father were partly in trust, for behoof of the fam ily; or that they were not to be used to their full extent; and therefore that the adjudications upon these cannot be set up as rights of property. ° B ut that is plainly cutting before the point. The adjudications, ex facie, are regular and complete, for sums double the value of the estate, and the legals thereof long ago expired; and it is upon that footing the petitioner pleads them, as s eparatim relevant to ex­ clude this process. It is no doubt competent for the pursuers to be heard upon any relevant objection to these, to reduce them to a security, or to open the legal: but, as matters stand at present, the pursuers must either proceed in proving their objections to these adjudications, or must give up their exhibition ad deliberan­ dum, so far as concerns these lands. And And when the aforesaid objec ions shall come to be more parti­ cularly insisted upon, they will receive an easy answer, viz. That as by the contract 1723, between the late Earl of Breadalbane and Archibald Menzies, it was agreed, that the Earl should lead an adjudication upon these very debts, and thereupon make a new disposition and settlement of the estate in the terms concerted, which Archibald Menzies was bound to ratify and confirm, as Ar­ chibald Menzies is supposed to have had the right to this estate vested in him; it would not be competent for any after heir to quarrel these debts, which Archibald himself had so acknow­ ledged: besides, that the debts themselves will, upon trial, be found to be true and ju st; but which is not hujus loci. May it therefore please your Lordship, to alter your former interlo­ cutors; a n d,upon the s ev eral grounds above stated, to fnd. That in hoc statu your petitioner has produced sufficient to exclude the pursuers proces s of exhibition ad deliberandum. According to ju stice, &c. A L E X. L O C K H A R T.