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The Laird of Towie dispones his estate to his only daughter, which was provided before to heirs-male; but his uncle the tutor of Towie having first granted a disposition to that daughter, and thereafter to others; there was a gift of recognition taken in favours of the daughter Elizabeth Barclay, both upon the disposition made to her by her father, and by the tutor, whereupon infeftments were taken without confirmation. It was alleged for the Lord Barclay's son, (to whom the tutor hath now disponed) that the tutor's disposition could not infer recognition, because it was extorted vi et metu, in so far as the tutor being a weak and old man of 80 years, was kept prisoner in a close room, under lock and key, or; under a guard in the house of Towie, till this disposition was subscribed, and none of his friends permitted to come to him, whereupon he hath a reduction raised, and repeats the same by way of defence. It was replied, That in fortification of the King and donatar's right, it was offered to be proved, that the tutor while he was at the house of Towie, was at full freedom, and went out and in at his pleasure, without any guard, and cheerfully subscribed the disposition.
The Lords did prefer neither party in the probation, but granted a joint probation by witnesses, above exception, for proving the manner of the tutor's abode at the house of Towie, and the manner of subscribing of the disposition.
