Whether certification against the immediate vassals is sufficient against the sub-vassals, whose rights fall of consequence?
Observe Gosford's report of this case.
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The Bishop of Caithness having obtained certification against several of his yassals' rights, pursues Innes to remove from certain lands which he held of one of the Bishops' vassals; who alleged, That the certification could not work o against him, because he was not called to the improbation, and his infeftment was a standing right sufficient to defend him. It was answered for the pursuer, Imo, That he was obliged to call none but his immediate vassals, and need neither know nor own sub-vassals, whose rights fall in consequence. The defender answered, That he could not misken him who was in actual possession before his improbation; 2do, Albeit there had been no need to call him in the first instance, yet he hath raised reduction of the certification, as proceeding by collusion of the Bishops' immediate vassal his superior; and doth now produce his infeftment holden of the Bishop, which would have satisfied the production, and excluded the approbation and reduction. It was replied for the pursuer, that the defender's right fell in consequence, neither was there any collusion; 2do, The charter produced is in anno 1634, long after the act of Parliament 1606, prohibiting Bishops to dispone their benefices, or grant pensions thereof, longer than the incumbents' life; and the charter produced bears it to be an original right after a former improbation; so that it is a manifest dilapidation of the benefice, seeing the Bishop should have continued in the property. It was duplied, That it is clear by the act of Parliament, that the dilapadition prohibited, is only by granting feus or tacks with diminution of the rental the lands paid formerly to the Bishop; but this charter in 1634 was no diminution of the rental, because it is offered to be proven, that the feu-duty therein is as great as the feu-duties in the old charter of these lands, preceding the act of Parliament; and if certifications by church-men were sustained, which are frequent amongst such a multitude of vassals, it would be of very evil consequence.
The Lords found that the certification was valid, and the sub-vassal needed not be called in the improbation, but his right fell in consequence; but found that the sub-vassal in the second instance by reduction, producing his superior's infeftment, ought to be reponed against the certification; and found that it was no dilapidation, and no unwarrantable deed, for the Bishop to pass from the certification, and to give a new infeftment, without diminution of the old feu-duty payable before the act of Parliament.
Fol. Dic. v. 2. p. 350. Stair, v. 2. p. 406.*** Gosford reports this case:
In an action for mails and duties, pursued at the Bishop's instance, against Sinclair of Sandisyde, it was alleged, That he stood heritably infeft in the said lands upon a right flowing from the Laird of Mey, and by virtue thereof had been seven years in possession. It was answered, That the defence could not be sustained upon the Laird of Mey's right, because the pursuer had obtained a decreet of improbation against the defender's author, who was only vassal to the Bishop and Sandisyde's right was never confirmed. It was replied, That the defender being sub-vassal, and in possession, ought to have been called in the improbation and so it could not militate against him; for if he had been called, he would have produced his author's right; likeas now he is content to produce the same. The Lords did find that the sab-vassal, being in possession as heritor, ought to have been called; and that the improbation could not militate against him, albeit his right was not confirmed; and if it were otherwise, it were easy to superiors, upon collusion or default of their immediate vassals, to take away the sub-vassals' right, albeit they had the principal rights, and were ready to produce the same, and so they reponed him against the improbation.
