Subject_1 SUPERIOR AND VASSAL. Subject_2 SECT. XXIII.
Act anent Annexations of Crown Property. - Grant from the Crown of the Casualities on the Estates of its Vassals.
Marquis of Huntly v. Gordon of Lesmore
Date: 22 February 1665 Case No. No. 98.
Click here to view a pdf copy of this documet : PDF Copy
In a process at the Marquis of Huntly's instance, as donatar to the forefaulture of the Marquis of Argyle against the Laird of Lessmore, for removing from certain lands disponed to him by Argyle, and which lands were old wadsets of the Marquis of Huntly's estate; the Lords decerned in the removing against Lessmore, because the wadsets were not confirmed by the King before Argyle's forefaulture.
Newbyth MS. p. 27.*** Stair reports this case:
The Marquis of Huntly, as donatar to the forefaulture of the Marquis of Argyle, as to the estate of Huntly, obtained decreet of Parliament against Gordon of Lesmore, for payment of the mails and duties of certain lands, and for removing therefrom. He suspends, on these reasons, 1st, That the decreet was null, not proceeding upon lawful citation, but far fewer days than are appointed by law, and that he was absent, and now alleges, that his right to the lands in question was by excambion with the Marquis of Argyle, for lands holden of the Marquis of Huntly, which he had possessed thirty or forty years before, and therefore, if the pursuer were dispossessed of the lands in question, he behoved to possess him in other lands; 2dly, The decreet is null, as not proceeding upon trial of an inquest, cognoscing the Marquis of Argyle heritable possessor five years before, conform to the act of Parliament; nor could that be cognosced, because the defender himself was heritable possessor these years; 3dly, The defender's right from the Marquis of Argyle, albeit it was post commissum crimen, yet the crime was latent, proceeding upon missive letters of his, that were found out of the English hands, which the defender could not know.
The pursuer answered to the whole, That he opponed the decreet of Parliament, which ought not to have been suspended by the Lords of Session, who are not judges to decreets of Parliament, who may dispense with the diets and solemnities of law; and the pursuer insists not upon the benefit of the five year's possession, but upon this ground, that the defender's rights from the house of Huntly, or from Argyle, were holden base of Argyle, and not confirmed by the King, and therefore by the forefaulture of Argyle, the superior, who, by his right, came in Huntly's place, these unconfirmed base rights fall;
Which the Lords found relevant; and, in the same process, mails and duties being but generally decerned, without expressing the quantities,
The Lords ordained the pursuer to condescend upon the quantities, and gave him a term to prove.
