Town-Treasurer of Edinburgh v. The Co-heirs of Sheins, &c
Date: 25 February 1696 Case No. No 6.
A feu-duty was payable in victual. Found that where the superior dwelt without the barony, the vassal was not bound to seek him extra curtem domini; but if he lived within the barony, the feuer was bound to bring it to him.
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The Town-treasurer of Edinbugh pursues the Co-heirs of Sheins, and sundry others, their vassals, in the Burrow-muir, for delivery of their victual (ipsa corpora) in time coming, and paying the highest prices for bygones, conform to the reddendos of their charters. Alleged, 1mo, They have been in use, past memory of man, never to deliver the bolls themselves, but allenarly the fiars, and these always 20 shillings, or a merk below the current prices: 2do, If they were to pay the bolls, they cannot be obliged to do it in barley, because, though the ground now produces it, through their industry and expence of mucking, yet, at the time of the subfeudation, about 100 years ago, there was no barley then in Scotland; and the words of their charter are tot modios hordei; whereas barley is usually expressed by the words of hordeum optimum; and the feuers of Musselburgh, &c. pay no other. Answered, Whatever has been the Town's lenity, yet that cannot prejudge a community, and superiors may exact their feu-duties in specie, and no prescription can run against that; and it is ridiculous to think vassals should be allowed to offer other victual, or worse than their ground produces. The Lords found, though the Town should not be rigorous to their feuers, yet in law they may require the bolls themselves; and, in case of not delivery, they might exact the highest fiars in modum panæ. And the question arising, who should carry the victual? The feuers contending they were only obliged to deliver it on the barn-floor; the Lords found where the superior dwelt within the barony, the vassal was not bound to go and seek him extra curtem domini (as the fedual law calls it,) but if he lived infra baroniam (as the Magistrates of Edinburgh did) then the feuer was bound to bring it to the superior; and likewise found, that these feus being perpetual locations, and emphytheuses for meliorating and improving of the ground, the superior had right to such grain as by the vassal's industry grew thereon; and found the public burdens and cess being imposed intuitu of the feu-duty, as well as the vassal's part of the lands, these burdens ought to be borne proportionally by the superior and vassal effeiring to their respective interests, the feuer being only like a colonus partiarius in the case. But in regard it was not liquid, the Lords did not receive it here, but reserved to the vassals their action for constituting and dividing the same betwixt their superior and them. See Public Burden.— Tack.
Fol. Dic. v. 1. p. 296. Fountainhall, v. 1. p. 715.
