Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Purves v. Lord Colvill
1667.
February
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My Lord Colvill holding his lands ward, and moribundus et in lecto, precipitates the marriage of his heir, that the casualty of the single avail thereof may not fall to the king and his donator; whereon Sir William Purves raises an action against this Lord, after the old Lord's decease, for the avail of his marriage.
Alleged,—The same did not fall, seeing by the law the marriage only falls when the apparent heir was unmarried the time of the vassal's decease.
Reply,—Though it be true that the feudal law is such, yet both in law, reason, and practique, (Skene, in notis Latinis ad cap. 91 Quoniam attachiamenti,) where the vassal dolose precipitates his apparent heir's marriage, when he is on death-bed, his dole cannot prejudge the superior, since there ought to be the greatest faith and honesty betwixt vassal and superior imaginable; and therefore the precipitation makes it as if it had not been done, being done fraudulently as said is. Vide February 1676, No. 471, parag. 7. There were no practiques produced for the case, only one in Skene's time, and another in Balfour's time; and Craig (tit. 52, cap. 15, page 301, in initio) was alleged for it. However, the Lords found the reply and libel relevant.
The Laird of Ruthven's case differed something from this; for though young Ruthven was married that same day his father died, yet there was a previous treaty and articles agreed upon when the old Laird was in perfect health; and the suddenty of his sickness occasioned the precipitation of the marriage, though agreed and resolved on before. This was not decided. But these cases were never drawn in question before this time, and precipitations of this kind were ordinary to shun the falling of the marriage; and it is very like the Lords would not have sustained it, if there had not been produced former decisions of the case.
And since all thir, there is another case emergent, not unlike, which is:—Jo. Kinlock dispones the lands of Jourdie to his son David, who is not married, and resigns in the superior's hands, and on the morrow after he dies; but was not infeft. For since the law is, that the marriage of the apparent heir is only due, and if the heir be infeft before the vassal's decease, it saves the marriage; the question will be, if the precipitation of an infeftment proceeding on the vassal's resignation when he was moribundus, will undergo that same fate before the Lords as the precipitation of the marriage. But this case is not tabled yet.
