78 The Kindly Tenants. 



3rd. For that the respondents' ancestors and purchasers from 

 them have always been admitted and enrolled in the Court books 

 of the manor without the least objection to their title. 



4th. For that on account of their beinp; irremovable tenants 

 they have been rated to the land tax, which could not have been 

 done if they had been ordinary movable tenants. 



Objection 1st. — That all rights of property in Scotland are con- 

 stituted either by charter, infeoffment, or leases, at least by some 

 title in writing, whereas the respondents have no such title under 

 which they can claim. 



A^iswer. — Here the appellant seems to mistake the point of 

 law. In the earliest times proprietors of lands had no titles in 

 writing, but their rights were known and ascertained by their 

 possessions and enrolment in the King's Courts, or in the Courts 

 of the other over Lords, and when the estate descended to an 

 heir, or was transmitted to a purchaser, the title of the ancestor 

 or author was cognosced by a jury, and the verdict of that jury 

 gave them a full right. That although since the feudal law was 

 fully adopted into the law of Scotland, titles have generally been 

 constituted by writings. It affords no objection against the 

 respondents, whose right is more ancient than tliat period of the 

 law of Scotland, and there yet remain other ancient rights of the 

 same kind, such as the udal rights in Orkney, where there are no 

 titles in writing, but lands are by possession only transmitted 

 from father to son ; the titles of the tenants or rentallers of the 

 Bishopric of Glasgow, of tlie Monastery of Paisley, and of those 

 who hold under the keepers of the King's Castles of Dumbarton 

 and Stirling, were of the same nature till of late ; and several of 

 the Bishop's tythes are held and enjoyed upon no other foot to 

 this day. 



Objection 2nd. — That the property of the lands in question 

 belonged to the Lord Maxwell, and, by his forfeiture, did return 

 to the Crown ; were afterward dissolved from the Crown and 

 granted to George, Earl of Dunbar, who surrendered the same in 

 favour of the Earl of Annandale, from wliom the appellant's 

 title proceeds. 



Answer. — It is denied that the lands in question ever belonged 

 in property to Lord Maxwell, or that they came to the Crown by 

 his forfeiture. They remained perpetually with the Crown, as 

 the Crown's own property, and the respondents' ancestors 

 continued still the Ci'own's kindly, irremovable tenants. The 



