PReſident Stairs having then great Power and Influence in the Judicatory, was ſo devoted to the Duke and Dutcheſs of Monmouth, that both he and his Son Sir John, were Commiſſioners in ordering and managing Their Eſtate here; And the ſaid Sir John, was their Advocate in that Proceſs.

The Lord Melvil preſuming upon that Intereſt, and the intimate Friendſhip he had with the Preſident, and having the managing of that Eſtate, the Friends of the Name and Family being laid aſide, to endear himſelf and his Service as more concerned for their Intereſt than all the Friends Curators, and Commiſſioners, and Lawyers; and His late Majeſty Himſelf, who had interveened in the tranſaction with Tweedale and his Lady, both as Arbiter; And there after as Party and Garrantee, and taken burden that it ſhould not be queſtioned upon pretence of Minority: He did after they were of perfect Age, adviſe that the ſame ſhould be queſtioned by a Proceſs of Reduction at her inſtance upon the reaſon of Minority and Norm Leſion, and did inſiſt in the ſame, until one Interloquitor was obtained, which was in effect a ſentence as to the moſt material points, being in Jure and Relevancie. So that there needs no probation of the ſame.

Reductions of tranſactions ſo ſolemn, are ſo unfavourable, that if the perſuers after they are of Age, do ratifie the ſame, either expreſly or tacitly by making uſe thereof, or doing any Act that may import the leaſt homologation and acquieſſing thereunto, they are ſo concluded, that the Allegiance of homologation, is relevant and eleids any Proceſs of Reduction; and yet Alleadgiance of homologation founded upon the Duke and Dutcheſs their giving Warrant after they were of perfect Age, to their Commiſſioners, to call for the Money due by Tweedale upon the ſaid tranſaction, and another homologation founded upon an Alleadgiance proponed by the Duke and Dutcheſs, their Advocates, in a Proceſs betwext them and a third Perſon upon the right of Haſſindean, given to them by Tweedale upon the ſaid tranſaction, were both repelled. The firſt, upon pretence that nothing had followed upon the ſame. And the Second, becauſe the Duke and Dutcheſs recovered no benefit upon the ſaid Alleadgiance, which pretences were moſt frifulous, ſeeing Law doth not conſider whether any thing follow upon ſuch homologations, or whether any benefit was recovered thereupon, but whether homologations did follow upon the tranſactions queſtioned, and perſuites and defences founded upon tranſactions in Law, are pregnant ratification the ſame, Et qui accepit agit.

By the ſaid Interloquitor, it is found, that Francis Earl of Buccleugh being named by his Father, Walter Earl of Buccleugh, Executor and Univerſal Intromettor, without any mention of a Legacy left to him, was nevertheleſs Univerſal Legator as to the Deeds part, upon pretence that the Defunct did appoint the Tutors to apply the readieſt of the Earl's Goods, Geire, and Rents, for ſatisfying his Debts; by which Article of the Interloquitor, the half of the Lady Tweedale's Intereſt, and ſhare of her Fathers Exequetrie is cut off without any Warrant or Ground in Law, ſeeing Univerſal Legacies in prejudice of Children, and neareſt of Kin are always, and ought to be in clear and in direct and formal words, viz. That a Perſon ſhould be named Univerſal Legator, or that the Defunct ſhould expreſly leave in Legacy to him his part, or in ſuch like words; Whereas the ſaid Earl Walter, who was in that quality, that in making his Teſtament, he could not want the advice of Lawyers and Writers, that knew the form and conception of Teſtaments, and Univeral Legacies, did name his Son his Executor and Univerſal Intrometor, without leaving to him any Legacy, either particular, or Univerſal: And the ſaid Clauſe anent his Goods, and applying the Rents to the uſe aforeſaid, is only an Order and Direction to the Tutors, to manage ſo his Eſtate, that the Rents ſhould be applied in manner aforeſaid; and that they ſhould be comptable yearly, to that purpoſe.

By the ſaid Interloquiter, there is a great part of the Lady Tweedale Her Claim and Share in her Fathers Exequetrie cut off, in ſo far as it is found that Annual rent is not due, for the Sums contained in a Decreet obtained immediately after; And in purſuance of the ſaid Tranſaction, at the inſtance of the Lady Tweedale againſt the Duke and Dutcheſs; Albeit, the ſaid Sums being due to the ſaid Lady, as Executrix to David Her Brother, it was found moſt juſtly by the ſaid Decreet. Upon a full debate in Foro, that Annual rent was due for the ſame, until the death of David, in Anno 1648. In reſpect the ſaid Sums; David being Pupill and Minor, was not only pecuni • Pupillaris, but was in the hands of the ſaid Earl Francis and his Tutors, and applied by them for payment of the ſaid Earls Debts and Annual rents; and he having that uſe and benefit of David's Money Annual rent, was therefore due not as uſura but as intereſſe, becauſe nemo debit locupletare cumaliena jactura; And it was a favour to the Duke and Dutcheſs, that Annual rent was only decerned until the time aforeſaid, and not until the Date of the ſaid Decreet in Anno 1667. And there after until payment, ſeeing Annual rent being once due and currant; and the ſame reaſon continuing, viz. that they had the uſe and benefit of the Money belonging to David, and the Counteſs, in his Right Annualrent continued to be due, and could not ſiſt until payment.

There was due to Lady Mary Scott, one of the Bairnes and neareſt of Kin to the ſaid Walter Earl of Buccleugh, her part of his Exequetrie and movable Eſtate, but ſhe being deceaſed before the Lady Tweedale was Married, her part aforeſaid fell and belonged equally to the Lady Tweedale, and David her Brother, who did ſurvive the Lady Tweedale her Marriage; and the Lady Tweedale having by her contract of Marriage, diſcharged and renounced that which might have faſlen to her by deceaſe of the ſaid Lady Mary, and the ſaid David having thereafter deceaſed, that which fell to him of the ſaid Lady Mary her part, did by his death accrew and belong to the ſaid Lady Tweedale; and albeit the ſubject of all diſpoſitions and renunciations of what may fall to any Perſon by the deceaſe of another, is limitted and underſtood to be that which had fallen to them at the time of their renouncing and diſponing the ſame, ſeeing what, after ſuch rights doth fall to them, was not exiſting, and is non ens, and not cogitatum in the time of ſuch renunciations: And what is given to them for the ſaid rights, is only given proportionably and with reſpect, and in contemplation of their preſent Right; and not of that which did not then belong to them, not ſo much as in ſpe or appearance but to another; and for the reaſon aforeſaid, it was found by Decreet above-mentioned in Foro, that the Lady Tweedales renunciation of that which may fall to her by Deceaſe of the Lady Mary, could not be extended to that which ſhe had not at the time of the Contract of Marriage of the Lady Marys part, and which did thereafter, fall and accrew to her by the ſupervenient death of the ſaid David; yet it was found by the ſaid Interloquitor, that the Lady Tweedale, her diſcharge and renunciation in her contract of Marriage, doth ſeclude her from any part of Lady Mary her Means.

The aforeſaid debate mentioned in the Sections, immediately preceding, concerning the ſaid Univerſal Legacy in favours of Francis Earl of Buccleugh, and Annual rent of the Sums due to the Lady Tweedale and Lady Mary, her part that fell where after her Contract of Mariage and Renunciation being in apicibus juris, and agitat, and decided by the aforeſaid Decreet in Foro, in favours of the Earl of Tweedale and his Lady; Nevertheleſs, the Alleadgiance proponed by them, and founded unanſwerably upon the ſaid Decreet, was repelled by the aforeſaid Interloquitor, and the Duke and Dutcheſs reponed againſt the ſame, upon theſe pretences, mentioned in the Interloquitor, viz. Firſt, that the ſaid Decreet was paſs'd in order to the ſaid Tranſaction betwixt the Duke and Dutcheſs, and Tweedale and his Lady. And Secondly, That it was during their Minority; Whereas, to the ſaid firſt pretence, ſeeing that it was not pretended that it was given unjuſtly, the paſſing of it in order to the ſaid Tranſaction, ſhould have rather been a motive for ſuſtaining the ſame as unqueſtionable, in reſpect it is the ordinary and the great ſecurity of the People, and the Intereſt of Minors, that Tranſactions and Bargains may be made with them, when there is a neceſſity to ſell or diſpoſe of their Lands or Goods, or to Tranſact for avoiding inextricable Pleas; and therefore beſides their Tutors, and Curators of their Parents, of their own choice, the Law provides for obviating all ſuſpitions of Fraud and Leſion, that ſuch Tranſactions and Bargains concerning them, ſhould be Authoriſed by Decreets of the Ordinary Judges, and ex Religione & authoritate Judicis; it is preſumed; preſumptione juris, that Tranſactions Authoriſed by Decreets, are without any Leſion, and juſt, and for the advantage of Minors, and ought to be unqueſtionable, otherwiſe, that ſeverity (both to Minors and others, who contracteth with them de rebus minorum ſine Decreto, non alienandis introduced by the Common-Law, and the cuſtom of this and other Nations) ſhould be altogether ineffectual and to no purpoſe.

The pretence of Minority for reponing the Duke and Dutcheſs to their defences againſt the ſaid Decreet; and in ſpecial, anent the points aforeſaid is moſt frivoulous and unwarrantable, in reſpect they could not be reponed to any defences, but ſuch as were omitted for them: whereas their defences, as to the ſaid particulars, was not omitted, but vigorouſly and fully proponed and argued, and the Judges Sentence following upon a full debate, cannot be ſaid to be any deed or omiſſion of Minors through the frailty of their age, being the deed and deciſion of the ſupreme Judge, which is preſumed to be, and ought ever to be juſt, whatever the quality or age of the Perſons concerned, or Pleading before them be: And there can be nothing more derogatory to the Honour and Juſtice of Courts then that their deciſions in Jure, which are ever eidem, ſhould be unjuſt againſt Minors; and ſuper iiſdem deductis, there ſhould be contrary deciſions upon no other pretence, but that they were Minors when the former was given.

It is found by the ſaid Interloquitor, that His Majeſties interpoſition in the ſaid Tranſactions can have no effect if it ſhould appear by the event of that Proceſs, that the matter was not ſufficiently repreſented to His Majeſty, which appears to be very ſtrange and unwarrantable, both as to the form and matter, ſeeing the queſtion whether His Majeſties Interpoſition ſhould be effectual or not, was not then, nor could be under debate, unleſs there had been a reduction intented in behalf of His Majeſty, for reducing the late King His Obligement, whereby he became Garrantee, and took burden, and was obliged that the Duke and Dutcheſs ſhould ratifie at their perfect Age, which by the ſaid Interloquitor, is exten •• d to be but • ne Interpoſition, tho' it be a moſt clear and pregnant Obligement; And the King in the ſaid Proceſs, wherein the ſaid Interloquitor is given, is not Party either as Perſuer or Defender, and intimation is only made to his Advocate of the ſaid Proceſs, which is of courſe, and ought to have been done in Law and Form by Tweedale and his Lady: And as to the matter if the ſaid diſcharge and Obligement, had been queſtioned by a Libelled Summons, and Reduction in behalf of His Majeſty upon that pretence, that the time of the ſaid Tranſaction, the matter was not ſufficiently repreſenting to His Majeſty; the Lord and Lady Tweedale, would have had a moſt relevant defence to elide the ſame, viz. that His Majeſty being Major and Sciens, and prudent did take burden for the Minors, and did oblige himſelf in manner aforeſaid; and ſhould have conſidered then, whether the matter was ſufficiently repreſented, and if he did not, it was not Tweedale nor his Ladies fault, nor could be a ground of Reduction of the Kings Obligement; but the miſtake in the ſaid Interloquitor was, that it was not conſidered that there was a great difference betwixt His Majeſties acting in His Royal capacity, and giving Grants and Gifts to His Subjects, and His Majeſties acting as privatus and cuilibet in Contracts and Tranſactions, and as a Party, and obliged for performance of the ſame; ſeeing Royal Favours and Grants may be, and are often elicited by ſuggeſtion and miſ-repreſentation, by ſubreption or obreption, which is never thought to be incident to Tranſactions or Obligements, which are the reſult of Treaty and Debate, and great deliberation: And as a private Perſon could not without abſurdity, pretend to be free of a Tranſaction or Obligement to Warrant the ſame, upon ſo frivulous a pretence, that the matter was not fully repreſented; much leſs the Tranſactions and Obligements of Princes can be queſtioned upon the ſame, ſeeing above all others in Their Tranſactions, Bone Fides, and Juſtice and Honour is ſaid to Exuberat. And it is not conceived that upon the event of a Proceſs ſo long after it can appear that the matter was not fully repreſented, the time of the ſaid Tranſaction in reſpect whatever the Iſſue of the Proceſs be, in Jure it cannot be known by the ſame what was repreſented, the ſaid Tranſaction that being in Fact: And it cannot be thought Tweedale and his Lady would not fully repreſent the matter as to themſelves, and their own Intereſt; and if what did concern the adverſe Party, was not repreſented for them by their Commiſſioners, Curators, and Lawyers, it cannot be imputed to Tweedale or his Lady, or enervate the ſaid Tranſaction and the Kings Obligement: But it is not to be preſumed the Integrity and Ability of ſo many Perſons of Quality, that was concerned in the ſaid Tranſaction in behalf of the Duke and Dutcheſs, being conſidered that the matter was not fully repreſented for them; and it appears by the ſaid Decreet, at the Inſtance of Tweedale and his Lady; ſo ſoon after and in purſuance of the ſaid Tranſaction, that all the ſaid grounds and ſubtilities whereupon the ſaid Interloquitor proceeds, was then fully repreſented.

From the Premiſſes and what is repreſented in the other Paper, given in for Tweedale and his Lady, it evidently appears that with great patience and diligence, they have been at great trouble and charge to defend againſt ſo long and tedious a Proceſs, that nothing has been omitted, that could be ſaid or done in the ſame; and the Duke and Dutcheſs being conſcious that Tweedale and his Lady had gotten ſo hard a meaſure, and being content to remit a very conſiderable part of what Tweedale would have been forc'd to pay upon the aforeſaid Interloquitor and decreet, that would have followed upon it; The Earl of Tweedale and his Lady by their accepting the ſaid eaſe, and granting a Bond for a far leſs Sum, has done nothing in prejudice of the ſaid Tranſaction; and by the contrary, if they had not accepted of the Terms aforeſaid, it might have been obtruded to them, that they had prejudged both themſelves and the King. And therefore it is humbly deſired, and expected from His Majeſties Juſtice and Goodneſs, that a courſe may, and will be taken for their Relief conform to the ſaid Tranſaction, and His late Majeſties Obligement.