[1680] Mor 11385
Subject_1 PRESUMPTION.
Subject_2 DIVISION II. Payment when presumed.
Subject_3 SECT. I. Presumption that articles claimed have been accounted upon.
Date: Viscount of Arbuthnot
v.
Rait of Halgreen
21 July 1680
Case No.No 43.
Found, that a superior's granting a a precept of clare constat inferred a presumptive probation that the double of the feu-duty had been paid to the superior, unless he would offer to prove by the vassal's oath, that it was not paid.
Click here to view a pdf copy of this documet : PDF Copy
In the mutual declarators between the Viscount of Arbuthnot and Rait of Halgreen, the Viscount concluding that Halgreen had incurred the irritancy of his feu-charter through not paying of his feu-duty for two or three years together; the other craving liberation therefrom, because of payment of some, and timeous offer of the rest;—this cause being reported, the Lords “found, that the superior's granting a precept of clare constat, does import and infer a presumptive probation that the double of the feu-duty was paid to the superior, unless he will offer to prove, by the vassal's oath, that the same was not paid; and find, that the precept being dated in October 1676, it does purge for the current year, viz. for the feu-duty owing at the Whitsunday preceding, and likewise for the half year owing at the Martinmas subsequent to the precept, though the term of payment was not yet come; so that none of these two terms can be counted or made use of, to make up or infer the vassal's Failzie or commission of the clause irritant: But assoilzie Arbuthnot from that conclusion of Halgreen's declarator, bearing, that he, the vassal, ought to be free of offering his feu-duty hereafter, unless his superior (who hath refused it now these several years) required him; and find “the vassal is liable to offer the feu-duty, albeit the superior do not require him.” I find the customs of France agree with this; if the superior be absent, or refuse, the vassal must take instruments upon his offer and the superior's refusal. So after this decision, there is no more room for doubting but a precept of clare constat cutteth off and dischargeth all preceding feu-duties, not as an absolute discharge thereof, but so as the want of these feu-duties, owing for years before the precept, cannot be counted, nor made use of by the superior against his vassal, for losing and amitting his feu, for not payment of the feu-duty; the precept being a dispensation quoad that caducity whether incurred in whole or in part, whether it have a clause of novodamus in it or not.
The electronic version of the text was provided by the Scottish Council of Law Reporting