William Douglas, Donatar to the liferent of John Stewart, v. Wedderburn
Date: 8 March 1628 Case No. No 3.
A vassal whose liferent, or other casualty, has fallen in the superior's hands, cannot disclaim him after the casualty has fallen.
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A donatar to the liferent of a superior will fall the liferent of the said vassal, in case the vassal remain year and day at the horn, although the said vassal's liferent vake not at the time when the donatar took the gift of the superior's liferent.
1628. March 26.—In the said action it was found, that the vassal whose liferent had fallen in the superior's hands, by his rebellion, attour year and day, or any other casuality belonging to the superior, might not disclaim his superior after the casuality had fallen. See Escheat.
Fol. Dic. v. 1. p. 245. Auchinleck, (Vassal.) MS. p. 252.*** Durie reports the same case:
In the declarator of Wedderburn's liferent escheat, mentioned 8th March 1628, voce Escheat; the Laird Wedderburn being present, alleged, That he disclaimed John Stuart to be his superior of the lands libelled, and was content the superior should make what advantage he pleased of that disclamation, and therefore alleged, that his liferent could not fall to John Stuart, as to his superior of these lands. This allegeance was repelled, and the action for the liferent sustained, notwithstanding of the disclamation, because the defender being once vassal to the said John Stuart, at least being vassal to the King's Majesty by the act of annexation, and consequently to the said John Stuart since, by his erection, the Lords found, that after the casuality was fallen, and acquired to the superior, by the fault of the vassal, the said disclamation made thereafter, could not take away the preceding casuality which fell of before; and it being in the superior's option, either to admit the disclamation, or to claim the casualties falling to him before, he could not be compelled to receive the samen, except he pleased so to do, seeing that was introduced as a benefit in favours of the superiors, which they needed not to admit but if they pleased so to do, after casualties were fallen.
Durie, p. 372.*** The same case is also reported by Spottiswood:
The pain of disclamation is the loss of the property of lands contraverted. By and attour the ordinary form of disclamation, when my vassal holding his lands of me, takes an infeftment holding of another superior than me, it is a tacit sort of disclamation.
One will not be heard to disclaim his superior at any time he pleaseth, for if it redound to his superior's disadvantage, he may not do it against his will. This was found betwixt John Stuart of Coldingham and the Laird of Wedderburn, whose liferent of some lands holding of John had fallen through his rebellion attour year and day. In which case, Wedderburn offered to disclaim, but was not suffered.
