Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
The Earl of Queensberry v. The Duke of Buccleuch
1672.
January25, and
June20.
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January 25. Scot of Newton, Chamberlain, holding some lands ward of the Earl of Queensberry, and others likewise ward of the Duke of Buccleuch, and the marriage existing, it fell to be debated which of the two was the oldest superior, to whom in law the marriage will be due. It was not controverted but before the Earl of Bothwell's forfaulture he was the oldest superior; but the question ran on this:—Bothwell was forfaulted; and because this gentleman was not confirmed quoad that land he held of him, his land fell also under the compass of the forfaulture. Buccleuch gets the gift of Bothwell's forfaulture, as also of this gentleman, who giving him back his lands, retained the superiority; whereon it was alleged that though the feudum held of old of Bothwell, and eo nomine he was the oldest superior; yet the feudum antiquum was extinguished by the forfaulture, and the new gift from his Majesty, or Buccleuch, was novum feudum, and to be reckoned allenarly from the date of the new charter, and so Drumlanrick was now the oldest superior.
This cause was well reasoned and illustrated from many similes taken out of the feudal law; which see in the informations beside me. De quæstione, an feudum post feloniam commissam restitutum be novum or antiquum, vide Matthæum de Afflictis, ad rubricam 14, libri 2 Feudorum, No. 7, p. 327.
Advocates' MS. No. 312, folio 127.
June 26. The Lords coming to advise the process marked supra, about Chamberlain Newton's marriage, at No. 312, they found, if seasine had followed upon that charter mentioned in the informations, then that the marriage would have belonged to Bothwell, as to the oldest superior; but since the vassal had not made use of that right, but taken a new one, which made it novum feudum in his person, and possessed by it, they found Queensberry the oldest superior, and therefore adjudged the casualty of the marriage to him.
