THe Lady Castle-haven, being many years since married to the late Lord Collingtoun, she was by a General Clause in her Contract of Marriage, provided to the Conquest of what should be acquired during the Marri­age, quoad an Liferent thereof; and upon this Clause, she having pursued the now Sir James Fowlis of Collingtown before the Lords of Session. They found, that Sums acquired during the Marriage, which had been applyed for payment of Debts, affecting the Estate of Collingtoun, were not to be repute Conquest.

And my Lady having apealled from the Session to the Parliament, the Interlo­cutor of the Lords was rescinded, and the Affair thereafter being moved in Par­liament, the same was remitted to the Committee for Fines and Forfaultures, for taking Probation as to the Conquest during the Marriage, and what of the effects were extant at the dissolution thereof; & a Condescendence being given in for my Lady, as to what Debts her Husband was in, anno 1656: This was sustained as pro­bative, unless Sir James could redargue the Condescendence, by proving that these Debts, or a part thereof were payed before her Marriage, which was in anno 1661. And the Committee having proceeded no further in the Affair, there was a Petition given in to the Parliament for her, in order to a further procedure therein, towards a final Determination thereof, and to which there are printed Answers likeways given in for the Defender.

There is now a Paper come out, intituled Duplys to the saids Answers, ush­er'd in with this Preamble, that the Answer contains nothing but a Narrative of what does not concern the point in Question, and of the Lords of Session their Injustice in repelling my Ladies Claim, and that this is a Reflection upon the Estates of Parliament, who have reduced the Lords Decreet, as also upon the Committee of Parliament, who sustained the Condescendence as probative, whereas in the Answer, the same is termed an extravagant and lubrick Con­jecture.

To this it's Triplyed for the Defender, that the Drawer of the Duply, of de­sign it seems to support the weakness of the Pursuers pretentions and Claim, by a willful Mistake, and unheard-of Stretch would amuse the high Court of Parlia­ment; as if in the Answers there were any thing that could in the least imply a Reflection upon the eminent Judicature, which is a willful breach of Charity, as will appear to the impartial Reader, upon perusal of the Answers themselves. For the Process before the Lords of Session, being founded upon a general va­grant Clause of Conquest, running upon critical Points in jure, and the Lords [Page 2]having determined according to the current of Decisions, in Cases of this nature; albeit the Parliament by their power have rescinded the Lords Interlocutor, yet this was no ground for the Pursuer in her Petition, by a long extrinsick Digression, to level at that Judicatory in the most indiscreet terms imaginable, as taxing them with palpable Iniquity and Injustice; although from this, nothing further can be inferred, but that the Session are not infallible in their Sentences, and that the same are subject to the [...]eview of Parliament, which is the Fountain of all Justice, and the Pursuer in prosecution of her Claim, might have forborn to have taxed them with such palpable Injustice, and with Expressions unbeseeming to have been used against the meanest Judicatorie of the Kingdom, so that the Defender in his Answers, designing nothing [...]ess than any seeming Reflection upon the Parliament, but modestly charging the Pursuer, as having too much bitter Zeal against the Session, in the carrying on of her Process, which was very compatible with that Submission and Acquiescence that's due to the Interlocutor of Parlia­ment, in determining a critical point in Law, there was no just ground to have ushered in this Duply with such a groundless Challenge. 2. The Inter­locutor of the Committee of Parliament, sustaining the Condescendance as to the Debts, is not in the least quarrelled by the Defenders Answer, but he therein follows the Pursuers own Method towards the clearing of the Af­fair: But in as far as the Pursuer adds, that the Defenders Father left an Estate of 10 or 12000 Merks by year behind him, and which is absolutely false; as also that what he did leave was the Product of the Acquisitions during the Marriage, which is likewise founded upon Conjectures and Presumptions, lyable to Mistake; this is not charging the Committee of Parliament with doing Injustice in the least, but allen [...]arly that the Pu [...]suers Condescendance, as to the free Estate, was extravagant, and that the Consequence drawn from the List of Debts, to make up a free Estate at the dissolution of the Marriage, was meerly conjectural and presumptive ut supra: and to stretch the design of the Defenders Answer any further, does truly proceed from a wilful, if not a malitious mistake of the true scope and intent thereof.

And whereas the Pursuer is pleased to term the Alledgance proponed by the the Defender, upon the Obligments of his Mothers Contract of Marriage, and upon the great Portion he himself brought with him, to be but a number of Sto­ries, nothing to the purpose, and that thereby the Pursuers Clause of Conquest in her Contract, cannot in the least be weakened or prejudged.

It is Triplyed for the Defender, That he being a lawful and true Creditor, as to a just Interest in the Estate of Collingtoun, upon the Obligments in his Mo­thers Contract of Marriage, long prior to the Pursuers Contract, and which was the onerous Cause of the Settlements made of this Estate in favours of the De­fender: It is no Story to found thereupon towards the evacuating the effect of a sub­sequent general vagrant Clause of Conquest, in a just comparing of the two toge­ther. 2. The great Noise the Pursuer makes in this her Process, arising from the great Debts her Husband was in at the Marriage, and from the alledged great In-comes during the Marriage, which are pretended to have been the ground of the Acquisition of what Estate the Defunct left behind him when he dyed: And this at most amounting but to a Presumption, is easily redargued by a special Condescendance of the great Fortune the Defender himself brought with him to the Family; and the greatest part thereof having come after his Marriage, from the deceast John Boyd, his Father in Law, who was known to be a very under­standing and provident man in the application of this Access. This is a Presum­ption [Page 3]much more pregnant than what is adduced in the contrary, and that the De­fenders Estate not exceeding 200 lib. Sterling yearly, was truly the Product of his own Fortune, and not the extant Effects of the pretended In-comes and Ac­quisitions during the Fathers Marriage; so that if the Drawer of the Duply had seriously considered the strength of the Defenders Argument, from the saids An­swers, he had certainly endeavoured to have taken the same off, otherways nor by a pretended general Duply, that the same contained nothing to the Purpose, and were Stories of no Weight or Monient: And it is known, the De­fender, beside what he had from his Father in Law, had for Fifteen years also a Sallary as one of the Lords of the Session, and so was not straitned to have spent his Tocher, nor was he an unfrugal Liver, as the Pursuer injuri­ously is pleased to Tax him, and this pretended Conquest arising but from a Presumption as aforesaid, and it being clear from the Answers, and from the Po­sition laid down by the Pursuer her self, that there could be no free Conquest, whereof the effects were extant at the dissolution of the Marriage, it necessarly fol­lows, the Estate now possest by the Defender, was truly the Product of his own Money, without burdening him to prove any special application thereof, to the payments of the Debt, which presumptione juris is to be supposed, considering it was the peculium adventitium from his Father in Law, who with a regard to his Daughters interest, and that of her Children, in Charity, is believed, would see the same was to be applyed to no other end, but for disburdening the Estate, and there was such intire confidence betwixt the Defender and his Father, that with a regard to the honour of the Family, it was agreed to, that no Assignations but al­lanarly Renunciations, were to be taken from the Creditors to their Diligences, there being no prospect at the time, as to this unexpected and unnatural Plea, so that the Renunciations indefinitely were taken, sometimes in favours of the Fa­ther, and at other times in favours of both joyntly, and the Defender does hum­bly crave, that the High Court of Parliament, before Answer, take Probation, as to the value of the Estate, which was Disponed to the Defender, and what Sums he himself brought with him by his own Marriage; as also, the way and manner of the Defunct, his keeping a separate Family of Children and Servants, during the whole time of their Marriage upon his own expences, through her Default: And whereby, the greatest part of all these prended In-comes during the Marriage, were necessarly spent and consumed; Reserving to the Parliament in termino: And after Probation is led, to determine the total Relevancy, in relation to the free effects, extant at the Dissolution of the Marriage, as it arises naturally to be considered, from the Presumptions adduced on either side, even without any necessity upon the Defenders part to prove, that any of the Debts in the list 1656, were payed before the year 1661, but making that list as the standard, in the way and manner proposed for the Pursuer her felt, and as is more fully contained in the saids An­swers. And upon the event of all which, it's hoped the High Court of Parliament will still be convinced, that the Justice of the Pursuers Claim, is supported rather from Presumptions and Conjectures, than upon any solid or pregnant proof in ju­re [...] or if the Important Affairs of the Kingdom, will not allow the High Court of Parliament the time, to take so exact a tryal of the Affair, as it necessarly requires, that the same may be remitted to the Judge ordinar to take tryal thereof, and to discuss the other points of the Process, which are not as yet either Debate or Determined.

And as to what is further urged in the said Duply, that it's not now competent for the Defender to alledge, he is not lyable upon the passive Titles, seing he [Page 4]brooks his Estate, by vertue of a Disposition from the Father, which is perceptio haereditatis, and has stated himself all along as a Contradictor in this Process, which is sufficient to infer a Representation, after the proponing of peremptor Defences in causa.

It's Triplyed for the Defender, that the state of the Process is opponed, and the Pursuer it seems has wilfully forgotten the same, for by the Act and Remit of Parliament to the Committee for Fines and Forefaultures, it's thereby cleared, that the Pursuers Procurators did only insist declaratoriae juris, to liquidat the Conquest, and did actually pass from that conclusion of the Libel, as to the Defenders being passively lyable, because otherways the Defender had sufficient grounds in Law whereupon to have defended against any Representation to his Father; and it is strange, with what confidence the Drawer of the Duply can deny this matter of Fact, which is clear by the Act in the Pursuers Procurators Hands, and to which the Defender mordicus Adheres.

In respect whereof, &c.