The Kindly Tenants. 79 



heritable right of keeping the castle did indeed belong to Lord 

 Maxwell's family, and by his forfeiture did return to the Crown, 

 and was afterward granted to the Earl of Annandale, which 

 appears by the appellant's own title. Particularly by the Lord 

 Maxwell service as heir to tiie ancestors, by which he is retoured 

 heritable keeper of the castle, but not proprietor of the lands in 

 question. 



Objection 3rd.~Th&t the Earl of Annandale, the appellant, 

 obtained a decree of removing against some of the tenants in 

 question, anno 1613, and another decree of the same kind, anno 

 1634, which is an evidence that the tenants were not irremovable. 



Answer. — These decrees were obtained in absence, and by 

 default against some inhabitants of the town of Lochmaben, the 

 nature of whose rights and possessions is not known. But 

 against none of the respondents' ancestors ; and as these decrees 

 were obtained only in default, they never took any effect ; and 

 they were part of the encroachments which gave rise to the 

 several complaints made to the Crown. 



Objection Ifth. — That the appellant's father obtained another 

 decree of removing against several of the tenants, anno 1665, to 

 which action they appeared by their counsel. 



Answer. — This appears to have been only a collusive action 

 brought by the Viscount of Stormont to turn the Earl of Annan- 

 dale out of possession of the rents, for although at first there was 

 an appearance of arguing for some of the tenants, yet so soon as 

 the Earl of Annandale made himself party to the suit, the 

 counsel, who pretended to appear for the tenants, withdrew their 

 appearance, and desired that judgment might be given as in 

 default ; and immediately after, the Viscount, to quiet them, 

 granted an obligation to the tenants never to remove them or 

 their heirs, and so this decree took no further effect, and is now 

 barred by prescription. Nor has any decree obtained in default 

 the least effect, after the parties appear and plead upon their 

 rights, as the respondents have now done. 



Objection 5th — That by Act of Parliament James VI. par. 11, 

 chap. 69 (Scots Acts, p. 569), it is declared that rentals set by 

 the King of Lands belonging to him in property, excepting feu 

 rentals set to them and their heirs, shall be of no further effect 

 than a naked life-rent, and that after the rentaller's death the 

 King may dispose of their possession. 



Answer. — The Act of Parliament has no relation to this case. 



