Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION. 1687.
The Duke of Gordon v. Sir Evan Cameron of Lochiel
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February 28.—The Duke of Gordon pursues Sir Evan Cameron of Lochiel for his lands of Mamore in Lochaber, on his gift of Argyle's forfeiture. Thir lands held feu of Huntly for 20 merks yearly, but were not confirmed. Argyle apprised them from Huntly. He being forfeited, Huntly is made donatar by the King in thir lands, and claims the property. Lochiel alleged, That his title could not reach that; seeing all that the Marquis of Argyle apprised from Huntly was only the superiority.
The Lords sustained his title. Vide 15th December 1687.
Vol. I. Page 451.
December 15.—The Duke of Gordon pursues Sir Evan Cameron of Lochiel for his lands of Mamore, as mentioned ult. February 1687. Alleged,—You cannot quarrel the defender's right of property in thir lands; because you, by your factors and chamberlains, since your retour of the quinquennial possession, (which is your title to thir lands,) accepted the feu-duties from him, and gave him discharges; and you have allowed it in their accounts: which was found relevant; Stair, 6th June 1671, Steill; and 20th February 1671, Earl of Aboyn. And this also holds in taking rent after a warning.
Answered,—Non relevat, unless the Duke had taken it himself, after intenting of this reduction: and cited the decision in 1683, Burnet, Archbishop of St Andrew's, against Beton of Blebo, about changing his ward-holding to tax; where the Lords allowed the Bishop to quarrel it, though he had taken the tax-duty.
Replied,—There was a disparity; for Archbishop Sharp, who taxed it, was only an administrator, and so could not prejudge the benefice. 2do, He was a singular successor, and so could not know what his predecessor had done.
The Lords, on Carse's report, in regard of the seeming contrariety of the practics, ordained them to be heard in presence.
The President thought, that, if Lochiel had insisted in his reduction of the Duke's quinquennial retour as to superiorities, he would prevail; for the inquest could never retour him to be in the natural possession of lands, when he got only the feu-duty, which is but possessio civilis. See, of this retour, Stair, 23d et ult. July 1666, Earl of Southesk. But, to show the Duke what he was to expect, the Lords decided this point that same day in a parallel case, to make it a preparative.
