Scottish Court of Session Decisions

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

Mr James Ogilvy of Cluny
v.
Kinloch of Bandoch

Date: 23 December 1673

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Bandoch, being charged at the instance of Cluny, as assignee to a minute, whereby Bandoch was obliged to infeft Cluny's author in a miln of Aberbrothic, did Suspend, upon this reason:—That he ought to have a year's duty, seeing it was not his fault that the charger's author was not infeft; quo casu undoubtedly Bandoch, as superior, was not obliged to receive a new vassal, either upon resignation or comprising.

It was answered, That the charger being only assigned to a personal right, and his author never infeft, there could be no year's duty craved, he having disponed the land to Cluny's author and his assignees; so that he gave him power to assign the right to any other, who, coming in his place, wras not obliged to pay a year's duty.

The Lords did find, that there was no year's duty due to the superior, which can only be craved where there is mutatio vassali, and the superior charged upon a comprising to enter the creditor; but, upon the vassal's resignation, which is voluntary, the superior is not at all obliged to receive a new vassal, but if he do it upon payment of a year's duty, which is a favour.

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