The Kindly Tenants. 7T 



not submit to the payment of tlie whole, which at last obliged 

 the respondents to bring tlieir action before the Court of Session 

 against the appellant's father to recover payment of his part of 

 the land tax so paid by them — in tlie iirst place for declaring 

 their immunity from paying his proportion of that tax for the 

 future, and that they were the Crown's irremovable tenants. 



Pending this suit the appellant's father brought cross action 

 for removing the respondents from their possessions, and having 

 it declared that they were removable at pleasure. 



The respondents insisted that they were the Crown's irremov- 

 able tenants properly to the lands, that they could not be removed, 

 and might dispone their right to extraneous persons, subject only 

 to pay their rents to the appellant, according to ancient usage, 

 that they had possessed immemorably, that their right has been 

 acknowledged by the several orders from the Crown above 

 recited, and that their ancestors and purchasers from them had 

 been from time to time admitted and enrolled in the Court books 

 of the appellant, and of those under whose rights he claims. 



The Court of Session decreed that the appellant should relieve 

 the respondents of his proportion of the land tax from the time 

 this suit was commenced, but absolved him from prior payments 

 in regard the respondents had voluntarily submitted to them. 

 And upon the question of right (24th Nov., 1726, 1st interlocutor 

 appealed against) the Lords by their interlocutor found that the 

 pursuers of the said declarator (i.e., the respondents' plaintiffs in 

 the action of declarator) had such a right. 



Against this interlocutor the appellant's father preferred a 

 petition, and the respondents put in answers (27th Dec, 1726, 

 2nd interlocutor appealed against). 



The Lords by their interlocutor found that the pursuers of the 

 declarator have such a right in the lands that they cannot be 

 removed, and may dispone their right to exti'aneous persons. 



Against which interlocutor this appeal is brought, but the 

 respondents humbly hope the same shall be affirmed for this 

 amongst other reasons : — 



1st. For that the respondents and their ancestors have enjoyed 

 their possessions by this tenure of kindly, irremovable tenants of 

 the Crown, time out of mind, and long before charters or feoff- 

 ments were in use in Scotland. 



2nd. For that their riglit to possess their lands without being 

 removed has been constantly acknowledged by the Crown. 



