Found that the avail could only affect the feuduty, exceeding the retour duty.
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The King's Advocate pursues Fairlie of Burntsfield, for declaring “that the lands of Hatton were holden ward of the King, and that by the marriage of the heir of Hatton, the ground of the land of Burntsfield was to be poinded for the avail of the marriage.” The defender alleged absolvitor, because he bruiked the lands by a feu infeftment granted by the Lairds of Hatton, and thereby was secure by the act of Parliament 1457, cap. 71, anent setting of ward lands feu, wherein the King declares “he will confirm such feus, or ward lands, as are set to a competent avail;” which custom hath declared to be the new retour duty, which at that time was a valuation of the true worth of lands, as they then paid; and declaring “the feuars shall continue during the ward, unremoved, paying their feu-duty to the superior by the ward,” which hath been unquestionable till the act of Parl. 1633, “annulling feus set thereafter of wardlands, without their consent or confirmation.” It was replied for the King, That the act of Parliament founded upon, doth secure against recognition, forefaulture, and removing by the ward, or paying a greater feu-duty than the retour mail, but mentions nothing of the marriage, which is a distinct casualty from the ward, and passes by a distinct gift, aud there is no reason to extend it to the marriage, because for the ward-duties, the King hath the retour duty, but hath nothing for the marriage, which therefore must remain entire. 2do, The defender hath taken a confirmation of the King, bearing 'an express reservation to the King of ward and marriage, which is produced. The defender duplied, That feus were but heritable tacks or locations, and the retour duty was the full rent, as it was the time of the old act; and therefore the feuar can be liable for no more than the feu-duty. 2do, It is beyond question, that if the King or other superior consent to a feu, granted by a ward-vassal by confirmation, or otherways, that he cannot quarrel that feu upon pretence of ward, marriage, or any other casualty; but the foresaid act of Parliament hath ever been found to import the King's consent, without necessity of confirmation; and though multitudes of cases have occurred for claiming the marriage of ward-vassals, to affect such feu-lands, yet no King's advocate, or any other superior, hath ever so much as raised a pursuit upon that ground, though it were of great advantage to them. It is true a marriage will be due to the King by his immediate vassal Hatton, which will affect him personally, or any estate of his, but cannot affect this further than the King's vassal had right, viz. the feu-duty, which exceeds the retour-duty, and as to the reservation, it bears expressly, as accords of the law; so that if the defender be secure by law, he cannot be reached by the reservation in his confirmation.
The Lords were clear that the defence on the old act of Parliament was relevant, ‘that the marriage could only affect the feu-duty, exceeding the retour-duty;’ and desired that the Advocate might instruct any one decision in the contrary.
