Scottish Court of Session Decisions

Subject_1 LIFERENTER.
Subject_2 SECT. I.

What is comprehended under a liferent right of lands.

The Marquis of Douglas
v.
The Countess of Sutherland

Date: 25 January 1700
Case No. No 11.

Lands erected into a barony being liferented by a lady as her jointure, it was found that she had right to the jurisdiction of regality within the bounds of her liferent lands.

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The Marquis of Douglas pursues a declarator against the Countess of Sutherland, that though she be liferenter of the barony of Preston and Bunckle in the Merse, by virtue of her contract of marriage with the Earl of Angus, his father, yet the jurisdiction and right of regality belongs to him as fiar, and that she may be discharged to exercise the same, by constituting a Bailie of regality, or to judge any farther than to give decreets against the tenants to pay their farms to her. Alleged for the Countess, She opponed her contract and charter, whereby the lands, lordship, barony and regality of Bunckle is expressly disponed to her, comprehending the particular lands therein mentioned, which gave her a clear right to the jurisdiction and exercise of the right of regality, in so far as extended to her liferent lands, for she claimed nothing of the superiorities belonging thereto; and accordingly she had been many years in possession, till of late she was interrupted by the Marquis; and though, in the King's charter, the inserting of the clause cum curiis carumque exitibus in the tenendas is not much regarded, being only an extension of stile, yet here it is in the dispositive clause, and her charter de me; and Craig, page 221. and 264. shews, that an heritor disponing with reservation of his own liferent, may enter vassals as well as the fiar, as was found in the case of one Cranston there cited.* Answered for the Marquis, That the design of wives’ jointures is but a liferent or ususfructus, carrying a right to the rents of lands, but is never designed to invest her with the jurisdiction, which remains with the proprietor, as Sir George Mackenzie, in his Criminals, Tit. anent the jurisdiction of regalities, § 4. affirms; and the mentioning the regality in her right is no more but designative, and all one as if it had said, “She shall liferent such lands lying within that regality.” The Lords found she had right to the jurisdiction of regality within the bounds of her liferent lands.

Fol. Dic. v. 1. p. 548. Fountainhall, v. 2. p. 84.

* See Appendix.