Jurisdiction of Proprietors who are not the King's Vassals. - Jurisdiction of those who are infeft cum curiis.
Dennistoun v. M'Linto
Date: 30 January 1630 Case No. No 263.
The clause cum curiis extends not only to a power of holding courts upon tenants for their rents, but for other breaches of their duty as tenants.
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Dennistoun having obtained decreet against M'Linto, in his own court, he being his tenant of the lands, which were holden by Dennistoun of the D. of Lennox, for payment of certain sums incurred for cutting of his wood, conform to a contract betwixt the parties, whereby the tenant was obliged to pay the same, if it were tried in his master's court, that he had contravened; and upon this decreet, seeking letters conform, the D. of Lenox compeared, and alleged, That that decreet was null, being given in his vassal's court, in prejudice of his regality, where the same should only have been tried and judged. The Lords found, That in respect that the sentence proceeded upon a mutual contract betwixt the master and his tenant, who consented that the trial should be taken in his master's own court (he being infeft cum curiis), that therefore the master might judge the same in his own court, wherein the superior and lord of the jurisdiction could not pretend prejudice; for if the tenant had done any thing against the law, in cutting green wood, or otherwise, which might bring him under censure, the lord having the sovereign jurisdiction might pursue him therefor, wherein this sentence, upon a mutual convention, could not derogate; and it was found, that the vassal infeft cum curiis, had power thereby to convene his tenant upon his own consent, and that the clause cum curiis extended not only to a power to hold courts upon his tenants for their farms, but also to any other act against his tenants, specially, it being so convened between them; and it was not respected where the D. alleged, that if all the vassals should so contract, his jurisdiction would be eluded; nevertheless the decreet was rescinded, and the defender reponed to propone all his defences in causa in this place here before the Lords, in respect the defender produced an instrument, where he offered to give his oath (the action being referred thereto), and nevertheless was decerned as contumax.
Act. ——.Alt. Burnet.Clerk, Gibson.
Fol. Dic. v. 1. p. 504. Durie, p. 487.
