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The Earl of Annandale being vassal in some lands, as a part of the lordship of Torthorrel, disponed the same to another holding base of himself; and the ward of these lands falling by the minority of this Earl of Annandale, the Marquis of Queensberry, as superior of these lands, pursued the Earl for mails and duties.
Alleged for the defender: No process, the heritable possessor not being called; 2do, The Earl cannot be liable for the mails and duties, he not being intromitter therewith; nor can the heritor be liable, unless he hath intromitted, these duties not being debitum fundi.
Answered: The pursuer is content to call the sub-vassal cum processu; and, 2do, He is not obliged to know any but his own vassal; for he hath not acknowleged the sub-vassal's right flowing from the Earl; and the sub-vassal's possession by virtue thereof must be considered as the Earl's possession, as a tacksman's possession is reputed the setter's.
The Lords, before answer, ordained the sub-vassal to be called cum processu.
