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The Bishop of Aberdeen having unlawed in his own court a number of his own vassals for their absence, his procurator-fiscal sought letters conform thereupon. Alleged by one Ogilvie, he could not be unlawed for his absence, because he held his lands feu of the Bishop for payment only of a certain feu-duty pro omni alio onere, &c. and was not astricted by his infeftment to give suit at any of the Bishop's head-courts. Replied: Hoc inest in his infeftment, that he is obliged to give suit and presence at the said head-courts, if it be not expressly discharged in his infeftment, although there be no mention of it. Duplied: There is no holding of its own nature subject to give suit and presence at courts, except only ward lands, unless it be contained in the infeftment per expressum. The Lords found the exception relevant.
Fol. Dic. v. 2. p. 406. Spottiswood, p. 76.*** Durie reports this case:
The Bishop of Aberdeen's Bailie having unlawed some of the vassals of the Bishoprick, for not compearing to answer in the Bishop's head-courts, and some of the vassals suspending the charges executed for payment of these unlaws, upon this reason, that they were infeft in the lands in feu cum curiis, and for payment of a feu-duty nomine feudifirma, and thereby were not subject to answer at his head courts; the Lords found, that feuers, who were infeft for payment of a feu-duty nomine feudifirma for their lands pro omni alio onere, were not subject to compear in their over-lords head-courts, they not being cited nor warned thereto, and so for their not compearance that they could not be unlawed. For the Lords found, that vassals holding their lands by ward holding, by the nature of that holding, are holden, and obliged hoc ipso to appear in their superior's head-courts, without any warning or citation, whereas the vassals by feu or blench-holding, by the nature of that kind of holding, (except it be otherwise provided by the tenor of their infeftments) are not obliged to compear at the superior's head-courts, nor at no other courts, except upon particular citation lawfully made to them, in cases where they ought to compear to answer there in which cases, being so cited, their infeftments do not always exeem them from their over-lords' jurisdiction.
