Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Robert Faw and Lord Lindsay v. Fotheringame of Poury and Lord Balmerino
1673.
June.
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In an action pursued by Robert Faw and my Lord Lindsay contra Poury Fotheringame and my Lord Balmerino, the following case fell to be debated, Whether or no bye-gone non-entry duties be due to the superior's executor, or to his heir, or any other singular successor standing infeft in the right of superiority. It was not questioned, if the superior had obtained a decreet of special declarator of non-entry in his own time, but then the same became moveable, and fell under his executry; but all the doubt was, where he died, the same being undeclared: in which case it was contended for my Lord Lindsay and his donatar Faw, that they transmitted to the heir and singular successor; because none could pursue the declarator but allenarly one who stood infeft in the superiority, and could give entry to the vassal, which did not quadrate to the executor; that the superior had no jus perfecte quæsitum to these obventions and casualties of superiority, before declarator; and, before that, they are jus individuum, and not seperable from the right of superiority itself, and so must be carried with it, aye till they be declared, before which time they cannot be properly said to be in bonis defuncti Superioris.
To which it was answered, that the superior, during the non-entry, was loco proprietarii, and the non-entry duties came in place of the mails and duties of the lands; and, therefore, as the mails and duties owing before the vassal's decease fall under his executry, so must thir non-entry duties fall under the superior's: and seeing it is not controverted but they are so conveyed after declarator, the analogy of law will dispose of them in the same manner before it; seeing a decreet of declarator alters not jus debiti, the nature of the debt, and it is as well due before as after, else it could not be declared in his favours: that the casualty of ward (betwixt which and non-entry in this case there is no imaginable disparity) falls to the superior's executor; ergo, that thir duties would fall under his escheat; ergo, are moveable: that all annual prestations after the term is elapsed at which payment should be made are moveable; as bye-gone annual-rents, feu-duties, tack-duties, &c. and thir non-entry duties are of the same kind, Ergo—
See a very full and learned reply to this in the Informations beside me.
The Lords found these bye-gone duties, never being declared, belonged to the heir and singular successor: which many judged disonant to the analogy of law.
As for the instance brought from the casualty of ward, I was stumbled by a resolution I found marked by Hadington in his practiques at November, 1609, No. 31, in a debate betwixt the Earl of Argile and the Laird of Ardkinlas; where it was thought a gift of ward and marriage undeclared fell to the donatar's heir, and not to his executor. And Craig, page 68, speaking of the same question, is very unclear; only insinuates as if what was due in right of the ward before the superior's decease appertained to his executors, and the rest to his heir.
In this action of Lindsay's, there were other two things controverted; the first was, that Lindsay's seasine was null, because not registrate, neither in the general register, nor in the particular of that shire where the lands about whose non-entry they were disputing lay. Answered, they were registrate in the particular register of Fyffe, within which these lands lay; at which, by a dispensation contained in his charter, seasine was ordained to be taken, and to stand sufficient for the whole. Replied, that dispensation gave no allowance for this way of registration.
The next point was, the pursuer being forced to restrict his summons to the retoured duty for all years and terms preceding the citation in his declarator; after that he craved the full mails and duties of the lands, and cited a decision in a case of Sir Jo. Harper's, where the Lords found it so. The defender alleged, that he could acclaim nothing but the retoured mail till he should obtain a decreet, after which indeed they confessed the full mails and duties would be due; and alleged a practique between the Earl of Argile and the Laird of M'Claud, wherein the Lords, that same very Session, had so determined it.—See them in the Informations.
