Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 SUPERIOR AND VASSAL.
Subject_3 Division of superiority null, when made without consent of the vassal.

Sir James Colquhoun
v.
William, Duke of Montrose, and Others

Date: 31 January 1781

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[Fac. Coll. VIII. 46; Dict. 8822.]

Monboddo. The case of Sir John Maxwell, 1742, related to a fiar; but that makes no difference, for a liferenter is proprietor to a certain extent. The petition for the Duke of Montrose aims at tearing up the feudal law by the roots. The very statutes, which wisely varied part of the feudal law, show that that law exists. The whole argument proceeds on this supposition, that a liferenter of superiority cannot enter vassals. It has been found that, although all casualties were discharged, the power of entering vassals being reserved, was sufficient to entitle one to a vote. We neither ought nor can make any alteration in the law. Questions of conveniency or inconveniency belong not to us.

Braxfield. The plea insisted in by the vassal is not captious. The thing here aimed at is a great evil. The right of superiority is the chief point of property. Men know not where to go for obtaining an entry. A parchment voter goes abroad, and no one knows where to find him. How much worse would it be were superiors multiplied without end? A right of superiority is an indivisible right; so that, if there is only one, it goes to the eldest heir-portioner. This has been determined over and over again. If I am bound to pay to only one man, by what title is it that that man can force me to go to half a dozen for my entry? All this is on the supposition that the petitioner is well-founded in his law, that the right of entry is in the fiar; but that I deny. If the power of entering vassals is not in the liferenter, what is his property? In blanch-holding the power of entry is a material part of the property.

Justice-Clerk. If a liferenter has not the right of entering vassals, he cannot vote as a superior; for his liferent right must be as extensive in its nature, though not in its endurance, as the right of the fiar. My difficulty is as to the case of those persons who are made liferenters on lands having only one reddendo. One charter was granted by the Duke of Montrose; but may he not still insist on granting different charters? and may he not still execute that power he formerly had?

Monboddo. This difficulty may be solved by a distinction: if superiorities are of the same kind, the power is lost when once waived: not so, if the superiorities are of different natures.

Braxfield. There is no evidence of the lands having been feued out at different times. In one feu contract there may be different reddendos. I lay my judgment on the fact.

President. It hurt me much to see fourteen freeholds erected on eight pennies Scots. At the next occasion we shall have the blanch duty of a pound of pepper divided into sixteen ounces. Here there is an attempt to overthrow the feudal law. The framers of the act for abolishing ward-holdings meant not to abolish the feudal law. It has been found that the superior could not again divide the feu, unless it were shown that the subjects were originally contained in different charters.

On the 31st January 1781, “The Lords sustained the reasons of reduction;” adhering to Lord Gardenston's interlocutor.

Act. W. Baillie. Alt. H. Dundas.