Consent to continue in possession inferred from facts.
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The Earl of Aboyne having obtained a gift from the King of a part of the estate of Huntly, fallen in the King's hands by Argyle's forefaulture, worth £.400 Sterling yearly; which being cognosced by a commission, the Earl was infeft, and pursued improbation against the vassals, a great part of his rent being feu-duties, and did obtain certification against several of the vassals whom he warned, and obtained a decreet of removing. They raise reduction of the certification and decreet of removing, and give in a bill of suspension on the removing, which, upon the Earl's desire, was ordained to be discussed upon the bill. The vassals insist on these reasons; First, That the Earl's gift being but for lands worth £.400 Sterling, and part thereof getting the superiorities and feu-duties as rent, he could claim no further than the feu-duty; Secundo, It was offered to be proved, That the Earl's Lady or Chamberlain had accepted the feu-duties for terms after the warning for several years, and thereby the warning is past from. It was answered for the Earl non relevat, unless the feu-duty had been accepted by his special warrant to lift these feu-duties; for use of uplifting, or general commission for uplifting of feu-duties, could never import a warrant to lift the feu-duties of their lands, to the whole rents whereof he had right by certification. It was replied, That the Earl's warrant, consent, or approbation, was sufficient, which was inferred by decreets in his own courts against the vassals, to pay to my Lady and the Chamberlain, or that the Earl had received accounts, containing these feu-duties as particular articles, or that by his knowledge the same were applied to his use, and his knowledge must be presumed by his Lady's or his Chamberlain's receiving the feu-duties, for three subsequent years, from these vassals, they being many in number.
The Lords found, That the receiving of the feu-duties for terms after the warning by my Lady or the Chamberlain for several years, without offer to return the same, did put the feuers in bona fide, to continue their possession, notwithstanding of the warning, and did free them from paying any more for the said years ; but found the same not to import a passing from the warning, unless the same had been done by the Earl's special warrant or approbation by decreet in his own courts, by his warrant, or in his presence, or by allowing in his accounts particular articles in the charge, bearing the receipts of these feu-duties, for applying them to his use, with his knowledge; but that they might be decerned to remove at Whitsunday next without a new warning.
