Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION reported by SIR ROBERT SPOTISWOODE OF PENTLAND.
Subject_2 Such of the following Decision as are of a Date prior to about the year 1620, must have been taken by Spotiswoode from some of the more early Reporters. The Cases which immediately follow have no Date affixed to them by Spotiswoode.

John Kennedy of Kermucks
v.
James Aikenhead

Date: 4 December 1635

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Mr John Abernethy disponed the lands of Glencorse to Mr Adam Bothwell, by two infeftments. That which was taken to be holden of the superior, (who was Craigivar, in place of the Lord Salton,) was never confirmed. After this, Mr Adam, being year and day at the horn, Craigivar gifts his escheat to John Kennedy of Kermucks, who, after general declarator, pursued a special: Wherein compeared Mr James Aikenhead, who had taken a gift of the same liferent of the king, and Alleged, No declarator in favours of Craigivar's donator; because the rebel was not Craigivar's vassal, in so far as the infeftment to be holden of him was never confirmed; and, therefore, he being nobody's vassal, (for, as to Mr John Abernethy, the infeftment which he gave to be holden of his superior, denuded him of all right of superiority that he could pretend,) in regard the infeftment was imperfect till it was confirmed; in respect the said rebel had given a charter of the same lands of Glencorse, to be holden of Craigivar, reserving his own liferent, which charter was confirmed; whereby he had acknowleged Craigivar to be his superior by that reservation of his liferent. Duplied, There is but two manner of ways whereby one becomes vassal to another, viz. either by taking an infeftment (original, or upon resignation,) from his superior, to be holden of him, or by taking infeftment of another than the superior, to be holden of his superior, which, being confirmed, makes the obtainer of the infeftment (original, or upon resignation,) from his superior, to be holden of him; or by taking infeftment of another than the superior, to be holden of his superior; which being confirmed, makes the obtainer of the infeftment vassal to the disponer's superior; but, as for his reservation of his liferent in his son's charter, it cannot be equivalent to a confirmation, seeing he has no further right given him by the superior than he had before, which, if he had got, there were some reason for this. Triplied, The reservation was a sufficient acknowledgment that Craigivar was superior, to whom likewise, by virtue of this same confirmation, the rebel became debtor of the feu-duties during all his lifetime; so that the rebel could never be heard to disclaim Craigivar for his superior, and no more the donator to his escheat, Quadruplied, Allowing that the reservation might prejudge himself, that he could not come against it, yet the king could not be defrauded by any concession of his, especially seeing he was rebel before the granting of this charter to his son; and, currente rebellione, the king could not be prejudged. The Lords repelled the exception in respect of the reply.

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