Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Earl of Argyle
v.
George Stirline

Date: 8 December 1668

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The Earl of Argyle being infeft, upon his father's forefaulture, in the lands of Balwill, as a part of the earldom of Argyle, did pursue a removing against George Stirline,—who alleged, That he could not be decerned to remove; because he stood infeft in these said lands by a charter under the great seal, before the Earl's gift of forefaulture and infeftment.

That defence was Repelled, Because the defender having no gift of these lands, upon the forefaulture, and his charter being only granted by the Exchequer, of course, upon a comprising:

The Lords found, That the King was not habili modo denuded of the right of property fallen by the forefaulture; which could only be done by a charter and infeftment upon the forefaulture: and that, notwithstanding it was alleged, that the property belonging to the King, by the forefaulture of the Earl of Argyle, who was superior of these lands; which were comprised from the Earl's vassals, who were never confirmed by the King; the charter under the great seal, granted, before the King was denuded, in favours of the pursuer, was equivalent to a confirmation of the vassal's right.

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