The superior's consent to his vassal's marriage, by being a witness in the contract, excludes him from the single avail. The ground may not only be poinded for the avail of marriage, but the vassal is personally liable.
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Alexander Arbutbnot of Fiddes pursues Keiths, the two daughters of John Keith, and their husbands, for the avail of their marriages, belonging to him, as donatar, by the Earl of Marshall, their superior. The defenders alleged, first, No process; because, nothing produced to instruct that the lands were ward, or that the Earl of Marshall is superior; secondly, Absolvitor from that conclusion of the summons, craving not only the ground to be poinded for the avail of the tocher, but also the defenders personally to pay the same; thirdly, Absolvitor; because, the Earl of Marshall consented to the defender's marriage, in so far as he is witness in the contract.
The Lords repelled all these allegeances; the first, In respect that ward, is presumed, where the contrary is not alleged, and the defender did not disclaim the Earl of Marshall as his superior; the second, Because, they found that the avail of the marriage did not follow the value of the land holden ward, but the parties’ other means, and estates also; so that the avail of the marriage might be much more worth than the profit of the ward land; and, therefore, behoved not only to affect the ground, but the heir, or apparent heir personally: And, as to the other defence of the Earl's consent, it was after this gift granted, and was only as witness; neither is the profit of the marriage, as to the single avail, taken away, by having of the superior's tacit consent, but is a casualty simply belonging to him, which cannot be taken from him, unless id agebatur to renounce the benefit thereof; yet it seems, that the superior, consenting to his vassal's marriage, can crave no greater avail than the vassal gets of tocher.—See Presumption.
