Feus, before act 1606, secure against casualties of superiority.
Marquis of Huntly v. The Laird of Cairnborrow
Date: 12 February 1674 Case No. No 2.
Feus granted by vassals of ward-lands, so long as the act of Parl. 1457. c 71. stood, did exclude not only ward and recognition, but forfeiture of the ward-vassal, granter thereof, without confirmation.
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The Marquis of Huntly pursues the Laird of Cairnborrow, as donatar to the forfaulture of the Marquis of Argyle, for the mails and duties of certain lands held by the Marquis of Huntly's predecessors ward of the King, and by them feued out to the defenders and their authors; and the Marquis of Argyle having right by apprising led against the Marquis of Huntly, this Marquis of Huntly hath right as donatar to Argyle's forfaulture.—The defender alleged absolvitor, because by the act of Parliament anent feuars, 1457, cap. 71. “The Parliament finds it speedful that the King begin and give example to the leave, that what prelate, baron, or freeholder shall give feus of his ward-lands, that the feuar shall remain unremoved, paying to the King sicklike farm during the ward, as he did to his Lord;” so that the defender's feus being conform to this act, and while it was in vigour, the King or his donatar cannot quarrel the; same, being granted upon, and accepted by, such an invitation by King and Parliament; likeas such feus have ever been found valid, not only against ward, which is specially mentioned in the act, but against recognition, and against all other apertures of the vassal's fee.—It was answered, That the said act bears only, ‘That the King shall ratifie such feus,’ which therefore cannot extend to feus not ratified; and forefaulture being so atrocious a crime, ought to be further extended than recognition.—It was replied, That the King's ratification is not to be understood of a charter of ratification passing the Seals, which alone, without any act of Parliament, would be sufficient; but is to be understood of the King's approbation, and not contradiction, otherwise without a confirmation such feus would not exclude ward or recognition, which yet they have ever excluded without any confirmation.
The Lords found, That feus granted by vassals of ward-lands, so long as the foresaid act of Parliament stood, did exclude not only ward and recognition, but forefaulture of the ward-vassal, granter thereof, without necessity of confirmation; because forefaulture of the King's immediate vassal being upon the breach of his fidelity, is in effect recognition, whereby the fee is returned without the burden of any deed of the forefault vassal, except such as are preserved by this statute; but forefaulture of those who are not the King's immediate vassals, confiscates their ward-holdings, as a penal statute, but with the burden of all subaltern rights and deeds of the forefault person. See Appendix.
