〈…〉 FOR The Earl of Roxburgh, and 〈…〉 his Brother 〈…〉  
THE Deceased Lord Ballenden be virtue of a Faculty in his Patent of Honour, Named Mr. John Kerr youngest Son to the Earl of Roxburgh (now Lord Ballanden) to succeed him in his Dignity and Honours, and substitute others of the Earls Sons to him, and failz●eing of all these and the Heirs Male of their Bodies, he substitute the 2d Son of the Earl of Roxburgh for the time being. And to maintain the Honour, he Dispones to the Lord Ballenden and the Heirs of Tailzie about 200000 marks, to which the Earl of Roxburgh adds more than 60000 marks; All which is strictly Tailzied under several irritancies, and the Members of Tailzie prohibit to Contract Debt, or do deids whereby the Estate may be deteriorat, in prejudice of the succeeding 〈◊〉 of Tailzie, providing alwise it be Lawful to the said. John Lord Ballanden. and other Members of the Tailzie, to uplift the sums Assigned they alwise Reimploying them in favours, and in the Terms of the Tailzie.  
The Lord Ballanden has greatly exe●ced the power of uplifting the sums Disponed be the late Lord Ballenden to him, and other Ho●rs of Tailzie without Reimploying the same: And there being yet fourscore thousand marks of the Tailzied sums in the Earl of Roxburghs hand, the Lord Ballendine has raised a Declarator against the Earl of Roxburgh Declairing it Lawful to him, to uplift the fo●esaid sum of fourscore thousand marks, conform to the Reservation and power in the Tailzie without necessity of reimploying the same, that not being his the Debtors Interest, But the Interest of the Heirs of Tailzie.  
The Earl of Roxburgh makes no opposition, but Mr. William Kerr his Brother▪ and next Heir of Tailzie failzieing Lord Ballendens Sons, has raised a Declarator against the Lord Ballenden, for Declairing that it may not be Lawful for him to uplift, nor for the Earl to pay the foresaid fourscore thousand marks, unless he reimploy the same upon Heritable security in the Terms of the Tailzie; And thereupon has Arrested in the Earl his hands, and Mr. William appeared for himself, and though both the E: and he gave the Honour's suitable to the Relation to the Lord Ballenden; Yet considering his Lordship's Circumstances, being Blest with a numerous Family, and that Mr. William is the next Heir to his Sons, and desires nothing more, than what was given for maintaining the Honour and Dignity of the Family may be Employed and preserved for that end; And that the 〈◊〉 in the Earl of Roxburgh hands may either so continue or be secured in the Terms of the Tailzie; And for this end, he urged that part of the Tailzie at the Letter B, whereby power is reserved to the Heirs to uplift, receive, and Discharge the Sums of Money above-written, providing alwise they employ the same of new again upon Lands or other sufficient Heritable Security for mantenance and preservation of the said Family; And do not by their Deeds deteriorat and prejudge the same, from whence it is clear, that the power of uplifting is qualified with a Provision to Reimploy; And so the present Declarator against the Earl of Roxburgh can not be insisted in nor take effect without Reimploying, which is more clear from the Clause immediately proceeding whereby it is expressly provided and declared, that it shall not be leisum nor Lawful to the said John Kerr now Lord Ballenden, and remanent Heirs of Tailzie and provision, nor their Heirs to sell, annalzie, or dispone Redeemablie or Irredeemablie the sums of Money, Lands, and others thereby provided to them, or to Contract Debts, or do Deeds whereby the samen may be evicted, or apprised from them.  
It was answered for the Pursuer, That by the Tailzie he has the power of uplifting, and the Earl of Roxburgh Debtor, is sufficiently secured be his Discharge as has been several times found be the Lords, in the Processes against the other Debtors, and the Earl of Roxburgh has no concern in the Reimploying, that being jus tertii as to him.  
And as for Mr. William Kerr, the Declarator and Arreistment at his instance has no Foundation, he not being next Heir of Tailzie, but the Pursuers own Son, to whom he himself is Tutor and Administrator, and so he having the power of uplifting is the only proper Judge of the Reimploying, wherein no person is concerned, but his own Son, and not any remote Heir, who its hoped shall never succeed.  
It was Replied▪ that the Earl of Roxburgh does not urge the reimploying, but only that the sums are Arrested in his hands at the instance of Mr. William Kerr, who replies that though he be a Remote Heir of Tailzie, yet seeing the Pursuer nor his Son can do no Deed to prejudge his Succession, he has very good Interest to oppose the uplifting unless the same be Reimployed in the Express. Terms of the Tailzie, and the Honour due to the Contracters of the Tailzie, besides the Express provisions thereof ought to Oblige both Pursuer and Defenders to the strict Observance thereof, and there are few Families in Scotland who would not accept a less value in the same terms, and dutifully perform the provisions and will of the Contracters; And it cannot be seen nor thought by what means or upon what Ground the Lord Ballinden can pretend to uplift any of the Tailzied Money without reimploying the same.  
Mr. William Kerr has likewise good action against the Lord Ballenden, for reimploying of the Money already uplifted, and for declairing his irritating of the Tailzie by uplifting, and not by Employing; Yet being more concerned in preserving to the Lord Ballenden's Sons what is extant, then in debarring the Lord Ballendine from the Liferent thereof, he forbears at this time to insist in that Declarator, so be it the Lord Ballenden either continue the Money where it is, and satisfy himself with the Annualrent or if he uplift, that the same be Reimployed in the Terms of the Contract upon good Heritable Security Rendering the like Rent or Annu●lrent Yearly, which is the Express Design of the Tailzie, whereby at the two double W: W: It is provided, that the Heirs of Tailzie may do no deed whereby the Estate and Living may be Deteriorat or Rendered in an worse Condition at their Deceasses, when the next Heir shall Succeed th●n ●t was at the Death of William Lord Ballenden, and that under Strict Instances now if the lifting of Money, and not Reimploying, or Reimploying not to the Value be not an Deterioration of the Estate, and Living from what is was when William Lord Ballenden the Granter of the Tailzie Deceased, let any Man judge, and i● there be but on small part Extant of the Taillzied Sums to maintain the same Dignity, which formarly was supported by the whole, it is most Rational and Just, that these Remains be Tenderly handled, Carefully preserved, and Employed to the best Advantage,  
As to the pretence that a Remote Member or Heir of Tailzie hath no Interest to Crave Reimployment, It is an obvious mistake, for there is a jus q●●sirum by such restrictive Clauses to all the Members of Tailzie, whose Succession in their order, the makers did intent to secure thereby. So that all the Members of Tailzie have an Interest, that it be not broke: And consequently may pursue such actions as is necessary for that Effect.  
Thus Process was Sustained upon the Lady Tarrase 's Interest and Diligence; Tho, at the Time only a Remote Heir in Humbyes Tailzie, and Process was likewise Sustained at the instance of the Remote Heir of the Tailzie of Ayton; Tho he was cast upon another Head. As also it is frequent, that Children of a Marriage may Pursue for Securing of what is provided by their Mother's Contract, though they cannot be Heirs, nor have Access to the Subject during their Parent's Life, and if paraleles were Necessary; It's certain, that in the matter of precedency, a Nobleman may contravert the Rank of another, af●er whom, he could not immediately follow at the time: But it is Enough, that this brings him nearer. But there needs no Remote Reasonings in so clear a point; For if the Interposing of Remoter Members or Heirs of Tailzie were not allowed, when the Subject is about to perish, than the present Heritable possessor, having the command of the next Immediate Heir: might utterly f●ust at the Tailzie as to the Substitutes, without any possibility of Remeed, which is against Law and common Sense.  
And whereas its pretended, that the Lord Ballendine hath already Obtained several Decreets against his Debtors: It is Answered, that this is nothing to the present purpose, because in these Decreets there was no Compearance for the Interest of the Substitute Members of Tailzie, who alone had Interest to obstruct the Payment otherwise then upon Reimployment at the Lords sight that being Incompetent to the Debtors, and as to the pretence that the Lords are not to interpose; It is plain, that now upon Mr. William's Craving it. Conform to the Conclusion of his Process Repeated Incidenter, the Lords may and aught to do him and the Rest of the Substitutes Justice therein. Besides that its most frequent in many other cases, to decern or find the Letters orderly proceeded, the Pursuer Reimploying at the Ordinars Sight. It being most certain, that an Elusory Reimployment, such as upon a House without Rent, upon Movables to be Consumed; In a word, upon a Babble whatever might be the pretium affectionis of it, in place of a Solid Stock, that might Answer the Design of the parties of preserving a Fund Suitable to the dignity of the Heirs of Tailzie, will never be permitted in such a case.  
Whereas it was Alleged for the Pursuer, that the Arriestment Signified nothing, because it follows the Fate of the Declarator, which will Determine both, It's Answered; that this is a mistake of the case,  
For the Declarator hath two Conclusions, being articulatus Libellus, one in Relation to the 80000 Marks, as yet unuplifted in the Earls hands, that it cannot be uplifted but on Reimployment, as to which only Mr: William Repeats it in the present Process. But quoad, the other Conclusion that the Lord Ballenden ought to be Discerned to Reimploy about 200000 Marks already uplifted by him, on which Dependence Arriestment is laid on in the Earls hands. Mr. William must carry His Process to the Roll; Since he neither does not can now insist in it. But in the mean time, the Earl Contends that be cannot be in tuto to pay till this Arriestment be loused, Seeing it will stand upon the Second Conclusion of the Libel, whatever come of the first, which, alone can be Determined in the present Process.  
In Respect whereof, etc.