INFORMATION FOR The Lord Grace. AGAINST The Laird of Pourie.  
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 unworthy of the Trouble of this Honourable Court, and which is shortly thus, The Lord Grace in February 1666, dispones to Pourie for the sum of 21000 Marks the Craige of Brughtie, with the Salmond-Fishing, Syze-Fish, and other Fishings belonging thereto, and obliges him to infeft Pourie in the foresaid Craige with the Fishings; and to warrant this Infeftment at all hands. And Pourie was thereupon Infeft under the great Seal, and entered in possession accordingly.  
But Pourie exacting the Size fish accustomed to be paid, with more than ordinary Rigour, provocks the Earl of Panmure to whose Lands four of the Boats liable in the Size fish pertained, to raise Declarator of Immunity, and though that Pourie did likeways raise a Declarator of Servitude on his part; Yet Panmure prevails and is assoilied, Whereupon Pourie pursues the Lord Grace 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 applies 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 paid by Pourie for the Craige of Brughtie, with the Salmond Fishing, Size Fish, & other Fishings thereto belonging, was 21000 Marks, whereof there was a 1000 Marks paid to a certain Person to procure to Pourie this bargain; So that all that was paid to the Lord Grace was neat 20000 Marks, and for which he got of Rentalled Estate 1200 Marks, and a Hogshead of Wine for the Salmond Fishing, and 230 Marks, with a Barrel of Salmond of a Few duty, and this by and attour the Size Fish, which is the subject of this controversy.  
2do. That the Size Fish is not expressly mentioned in the Old Rights: But the Lord Grace and his Predecessors having come in use to uplift them, Pourie would have them Insert in his Disposition, though 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 Size Fish was only expressed 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 Barony, whereof the Syze-Fish makes no article, because it was in effect only disponed as a pertinent possessed, but without any assurance of Right. And 4to. It is to be adverted, that the whole Size Fish of the Four Boats is not in truth worth more than forty Marks, though 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 Grey alleges.  
First, That the Size 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 Accessory by way of Pertinent, and the Ratio Rationis, is because what is disponed Accessory, 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 liable, because he disponed it only as a Pertinent, and this is clear in the Ordinary case of men's 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 Accessory and not principally, the Disponer is no farther liable 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 farther, which ground being applied to the Case in hand; It is evident that the Syze-fish in the Lord Gray's Disposition was only disponed Accessory; 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 alleged with any colour, that the word belonging or pertinent doth only affect the words, (And other Fishings) immediately preceding, & not the Size 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 expressly, and for an onerous cause falls under the warrandice; Because it is evident, that if any thing (though never so express) be only disponed by way of pertinent. It falls no farther under the warrandice, save to oblige 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 absolutely, 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 farther clearing of the undoubted ground of Law above laid down; It is to be remembered, that the Size 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 expressed at Pouries' desire, and disponed as belonging, or pertinent to give him a Title talis qualis, & as his Author had, but no ways to oblige his Author in absolute warrandice, which can never with any show of Sense or Reason be applied 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 expressly provided, that the Disponer shall warrant it to be pertinent, But if it be only disponed as pertinent without the foresaid express provision, then in all Law and sense the words Belonging or pertinent are taxative qualifieing the right, and plainly importing that 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 qualify the Syze-Fish, is evident from this Ground, That the Syze-Fish, without the said Restriction, is indefinite 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 otherways 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 otherways 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 than 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 Grace 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 absolute Warrandice.  
4to. And for super abundance, it could be demonstratt, (if needful) 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 Grace 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 sixty years' Possession, and the other concurring Witness having only deponed in general terms, that the Possession had been since his Memory, and Pourie having neglected to interrogate him upon particular years, albeit he was aged 80 years; Yet the Lords found that the memory 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 Poverie had a Woodset, and Possessed 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 Grace, and his Author's Possession to 39 years allennarly, and so not completing 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 Grace 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 willfind it was optime judicatum; And that Pourie for his groundless and wilful protesting, and obliging the Lord Grace to so great expenses and trouble in defending this so unconsiderable and trivial affair, both before the Session, and now before the Honourable Court of Parliament, aught to be condemned in large expenses.