Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 YULE VACANCY.
- v. The Earl of Caithness
1677.
February.
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Eodem tempore.—He who assumed the title of Earl of Caithness, as nearest contingent in blood, was, by a proclamation, inhibited to take the said style, or the lieges to give it him, on this pretence, that both the estate, honour, and dignity, were resigned in the King's hands in the last Earl's time. And though some doubt of the resigning of honours, yet Sir George Lockhart thinks a man may, in prejudice of his heirs, resign the very title, and surrender and abandon it, ad perpetuam remanentiam, in the King's hands, which will extinguish it and consolidate it with the fountain of honour: for our feus are feuda conditionata, not the feuda gentilitia ex pacto et providentia mentioned in the feudal law, where a man could not resign or abandon the fee without the advice and consent proximorum agnatorum, and if he had done it, they had jus retractus within such a time; see Craig, De Jure Protimeseas. With us a man in liege poustie may prejudge his heirs, and give it to strangers; unless it be in ward lands, in the alienation of more than the half whereof he must have the superior's consent, though not his kinsfolk's. And by this same rule, burghs royal have resigned their freedom and privilege in Parliament, and so expunged the rolls: though it seems their magistrates, commissioner, or other representative, hath less free administration of the town's freedom than a man hath of his own title; yet I have seen it done in Cromarty, Enstruther Wester, &c.
On the other hand, one may think it hard to hinder the nearest heir-mae to take the style, it having been originally given to that man and his heirs, and nothing should deprive him of this his birthright but a crime that taints the blood. And so this Lord Kenmuire being a cousin, and the nearest to the last Lord, took the title and place without so much as cognoscing himself to be the nearest contingent in blood, (which is sometimes done and makes no passive title,) and yet none quarrels him. It is true to serve and retour himself heir would bind all the debts on him; and it is a pity that the taking the style and place should not infer a gestion; it has been attempted; it would make fewer nobles; but the same behoved to extend also to gentlemen, and burgesses taking their father's style, or entering burgess by him.
They say Somervell of Drum minds to assume the title of Lord Somervell, as being the nearest. See Dury,————1633, Sir James Douglas of Mordington contra the Lord Oliphant. De refutatione feudi, vide Craig, p. 316.
In September, 1677, Campbell of Glenurchie was created Earl of Caithness; and that gentleman, who is nearest in blood, has raised a reduction against him of his right to the said title. The nearest agnate's reason of reduction is, that Glenurquhy claims the title and dignity upon the last Earl's resignation in the King's hands. Now, the last Earl's right, by which he bruiked the estate, was not as served and re-toured, but as singular successor who had bought in a comprising. Now the title of Earl neither was, nor could be, comprised; and so his resignation (though he was nearest in blood) could not convey this title; and the pursuer being served heir to a former Earl, he has the only right to the title. This is somewhat subtile.
