A superior being forfeited, all rights flowing from him fall in consequence.
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In a reduction and improbation at the instance of the Duke of Gordon, as donatar of the Marquis of Argyle's forfeiture, against Lochiel, one of his vassal's in Badenoch,
Alleged for the defender; That his lands are not expressed in the pursuer's right, nor did the defender ever acknowledge my Lord Argyle for his superior, nor does the retour say, that the rebel was habit and repute heritor by labouring, &c. and other qualifications mentioned in the act of Parliament about the quinquennial possession, but only that he was repute superior.
Answered; Rights of superiority cannot be retoured by deeds of possession, but only by being habit and repute.
Replied; Receiving payment of feu-duties is a possession; and the defender is willing to hold the lands of the pursuer as superior; and the property not being alleged to have been in the rebel's person, but only the superiority, it ought not to fall under his forfeiture.
Duplied; A superior being forfeited, all rights flowing from him unconfirmed, fall in consequence.
The Lords sustained the retour, and repelled the defender's allegeance and reply.
It was afterwards alleged for the defender; That his lands were feued out before the 1633; and the act of Parliament allowing vassals to feu their ward lands, is equivalent to a confirmation of the subvassal's right.
Answered; Non relevat, unless the defender say, that his lands held ward before the year 1633, and were feued for a competent avail, and prove both, as in Lord Lauderdale's process of recognition; and here the pursuer produces his charter, bearing the barony to hold feu of the King, which is presumed to be the ancient holding, unless the defender prove the contrary, by the more ancient infeftments, which are more likely to be found related to in his rights from the rebel's authors, than that the pursuer, as donatar of the forfeiture, can have them.
Replied; The pursuer's charter proceeds upon his own resignation; and all lands holding of the King are to be presumed ward, till the contrary be proven.
The Lords found the defender obliged to instruct positive, that the lands feued before the 1633, held [ward] anciently, and that they were feued for a competent avail.
Fol. Dic. v. 3. p. 313. Harcarse, (Forfeiture.) No 498. p. 238.
