Subject_1 IMPLIED DISCHARGE and RENUNCIATION. Subject_2 SECT. I.
Whether acting as Superior, by receiving Casualties, implies a Discharge of any Claim to the Property.
Earl of Cassillis v. Sir Andrew Agnew
Date: 6 June 1666 Case No. No 3.
Passing from a declarator against a feuar's right, found not to be inferred by acceptance of two years’ feu-duties after the declarator.
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The Earl of Cassillis, as superior of some lands holden of him, by John Gardiner, obtained declarator of his liferent escheat, and that a gift of the said liferent, granted by the said Earl to the said John was null, in so far as it contained a clause irritant, That if John Gardiner should give any right of the lands to any of the name of Agnew, the gift should be null, ipso facto; whereupon in anno 1650, the Earl obtained declarator of the clause irritant, by John Gardiner's giving right to Sir Andrew Agnew, and now insists for the mails and duties since that declarator. It was alleged, that the said Earl had accepted the feu-duty of several years, since the said declarator, and thereby had tacitly past from the declarator, and could not seek both the feu-duty and also the whole mails and duties by the escheat. It was answered for the Earl, that having both rights in his person, he might poind the ground for the feu-duty, and his donatar might pursue for the mails and duties; 2dly, his acceptance of the feu-duty, albeit it could not consist with the mails and duties, yet it would only extend to those years that the feu-duty was accepted, and to no others.
The Lords found the acceptance of the feu-duty relevant only for those years for which it was received; but it occurred to some of the Lords, that if it were alleged there were three consecutive discharges of the feu-duty, that these, as they would presume all bygone feu-duty paid, so they would extend to the mails and duties for all years preceding the discharges; therefore the defender was ordained to condescend if so many discharges were, and that this point might be debated.
