Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

The King's Advocate
v.
The Earl of Nithisdale

Date: 25 February 1679

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The King's advocate pursues a reduction of this Earl of Nithisdale's right of the lands of Duncow, on this reason,—That, by the Act of Annexation, anno 1593, the lands of Duncow are annexed to the crown; and, accordingly, the rents thereof have been still counted for in Exchequer.

The defender produced a charter from the king in anno 1540, bearing expressly the lands of Duncow to be a part of the earldom of Galloway; which was dissolved, by Act of Parliament, to be set in feu-farm; and, accordingly, was feued to the Earl's predecessor: likeas the Act of Parliament dissolving the same is evident from the Acts of Parliament. The defender doth also produce a progress of the said lands down to himself.

And the Lords having, before answer, ordained either party to produce such evidences as they could anent the possession, it is clear, by the evidences adduced, that the Earl and his predecessors have been in immemorial possession of the said lands, by lifting the maills and duties thereof, by out-putting and inputting tenants; and that there was never an account made in Exchequer thereof, but only of the feu-duty contained in the Earl's charter. And, as to the Act of Parliament 1593, it is a repetition of all the king's property, by several preceding annexations; and though it expresses Duncow in the denomination, which is not expressed in the former annexations, yet, before it was feued, it was a part of the lordship of Galloway, as the Earl's charter from the king bears; which the particular enumeration thereof doth not alter; but Duncow is expressed particularly, because, since the Earl's feu, it is divided from the rest of the lordship of Galloway, and makes a particular æque.

It was answered, That the king hath not, nor can have, a charter for his annexed property, but hath right thereto jure coronæ: and, therefore, showing that the lands of Duncow are annexed in anno 1593, it is to the king a sufficient right; and nothing but a posterior dissolution and feu can exclude the same.

The defender replied, That an original annexation, expressing the particular manner of the lands coming to the crown by forefaulture, recognition, or otherwise, though done by Act of Parliament, by citation of parties, might be pleaded not to come in under the Act salvo, or under the cognizance of the Lords; yet, if this were extended to annexations, repeated by the Act 1593, or other Acts, it would, at one blow, annul all the feus of the king's property in Scotland, they being all therein enumerated, as lordships and baronies annexed to the crown; and, therefore, though they be a part of the king's property, yet that is without exclusion of the feus lawfully made after dissolution in Parliament, as this is prior to the said Act of Parliament.

The Lords found, that the Earl's charter in anno 1540, did instruct the lands of Duncow to be a part of the lordship of Galloway; and that, by the prior Act of Parliament, it was dissolved in order to a feu; and that the same was not derogated from by the Act of Parliament 1593, but was a valid right, clad with immemorial possession by him, and the successors of the first vassal; and that the rents were never counted for in Exchequer, but only the Earl's feu-duty: and therefore assoilyied the Earl from the reduction.

Vol. II, Page 702.