[1674] 3 Brn 40
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL
Subject_2 WINTER SESSION. - Anni 1973.
General Dalzeel
v.
The Tenants of Caldwell
1673 and 1674 .Click here to view a pdf copy of this documet : PDF Copy
1673. June.—General Dalzeel, as donatar to the forfaulture of the Laird of Caldwell, pursues a removing against some of the tenants of these lands; for whom it is alleged, that they bruik by virtue of tacks set by the Laird of Caldwell, before his committing the treason and being in arms at Pentland, for which he was forfaulted; and whereof there are sundry years yet to run, and so cannot remove.
Replied,—That by the forfaulture, founded on the vassal's treason and rebellion, the fee was opened, and the lands returned as free and unaffected as when they were first given out, unless it were rights consented to or confirmed by the superior, which tacks were not. That tacks could have no more privilege than base infeftments unconfirmed, which, though clad with never so long possession, could never defend against a donatar. That tacks cannot sustain against a superior, neither in wards, nonentries, recognitions, disclamations, liferent escheats, nor these other casualties;
and therefore much less should stand against a forfaulture. That else his Majesty's interest might be easily evacuated, by setting tacks at imaginary and incompetent avails before they commit treason. That they are less favourable than heritable alienations where the full price is paid; and yet such alienations become null upon the forfaulture, where not confirmed. Yea, tacks of any duration, as for nineteen years, are reputed as alienations; so Craig, p. 205: and therefore must be in the same case with them. Duplied,—Tacks, by act of Parliament, James Second, (Act 18, in 1449, contrary to the civil law, 1. 9. C. Locati,) are ordained to stand secure against all singular successors; ergo, also against the donatars to forfaulture. That it is the interest of heritors, and of the poor labourers of the ground, and for the policy of the kingdom, to have it so, for improvement of lands. That the act 202, Parliament 14, James Sixth, in 1594, (see the laws there cited on the margin,) annulling deeds done by persons forfaulted, speaks only of such as are done by them after the commission of the crime; and though, in the narrative, it mentions tacks set after the crime perpetrated, yet, in the dispositive part, there is not one word of them; whereas, if the law had meant any such cruel and devouring extension, that was the alone proper place, but is ex proposito omitted, for ubi lex non loquitur nec nos, &c. But Craig, p. 206, is most positive that tacks are not prejudged by forfaultures; yea, Maitland of Leidington, (17th March, 1569, folio 58,) hath an express practique at the year 1570, between Home of Manderston, and the tenants of Auldhamstocks, where the Lords found, tacks set before the crime a good and sufficient right to defend on against the forfaulture; and wherein this very debate, and the instance of base infeftments, was fully urged and repelled; and he also tells of another case, wherein the same was found by the Lords of before. Craig, Feud. p. 206, is express, valet assedatio, licet ex post facto forisfactus sit is qui locationem fecerit. See act 37, Parliament 1571; but that is rescinded by the act 201, in 1594. Vide supra, No. 122, the Earl of Argyle contra George Campbell. That tacks set before the crime would be preferred to any public infeftment, or base infeftment confirmed between the commission of the crime and the forfaulture; but, ita est, any of these infeftments, as more preferable, would seclude this donatar to the forfaulture; ergo, much more must the tacks do it, per regulam, Si vinco vincentem te, tunc te vinco; l.14. p. 3. D. de Diversis Tetemporalibus Præscriptionibus. Vide Everhardum Præsidem, in locis legalibus, loco primo ad ultimum, p. 658. As for the argument drawn from base infeftments, the same is of no moment or weight: Because, 1mo, The one is a perpetual, the other only a temporary exclusion. 2do, The one has little or no profit with it; the other pays near the avail of the land. 3tio, The one tends to the melioration of the fee; whereas the other dilapidates, lessens, and dissipates the same. And as for the argument drawn from wards, it is most inconsequent; for there the effect of the tacks is only suspended, interrupted, and laid asleep for a time; whereas here, the design of this donatar is to extinguish them for ever. As for the argument drawn from recognition, liferent-escheat, and the other feudal delinquencies founded upon presumptive contempt, as if tacks cannot defend against them; it is wondered to hear so absurd an assertion pretended, seeing it is most consonant to law that they should defend against all these calamities: neither is the contrary ever decided. And setting of tacks for just duties is a mere act of administration, even competent to those who are not proprietors; Craig, p. 204; videlicet, to all qui habent plenam puram et debitam feudi administrationem; and so differs extremely from heritable alienations; 1. 8. D. de Juris et Facti Ignorantia. And if ignorantia juris, where
it is dubious, be very excusable, especially in rusticis ubi certant de damno vitando, then much more must defectus juris be such; but, ita est, there is no style, no practice, nor precedent known, for confirming tacks, and saving them from the danger of forfaulture, if they be not valid rights, secure from these after-claps of themselves. And if any such thing seem convenient to be introduced now, the same cannot reach such who have acted bona fide, according to the custom and law now known; and it needs constitutione Imperatoria: and the 1. 10. D. de Jure Fisci, would be considered, quod in dubiis questionibus non errat qui contra fiscum responderit; and that of Plinius to Trajan, in panegyrico, Causa fisci nunquam mala est nisi sub principe bono. See a very learned triply to all this in the informations beside me.
1674. January 28th.—In the debate largely marked supra, General Dalzeell against the Tenants of Caldwell, num. 406, [June, 1673,] the Lords having advised it, they found, tacks set to a competent and adequate avail, as thir questioned were, good and sufficient to defend against a forfaulture; but not where the duty was unanswerable, elusory, imaginary, or within the true avail; and this decision was grounded on the 18th and 19th acts of Parliament in 1449.
Vide infra, No. 446. [Earl of Aboyne, February, 1674.]—See 27th January, 1680, thir same parties.
The electronic version of the text was provided by the Scottish Council of Law Reporting