Subject_1 IMPLIED DISCHARGE and RENUNCIATION. Subject_2 SECT. I.
Whether acting as Superior, by receiving Casualties, implies a Discharge of any Claim to the Property.
Lockhart v. The Creditors of Nicolson
Date: 14 January 1696 Case No. No 6.
The Court decerned in a recognition, though the superior, after he knew that it was incuried, received the feu-duties.
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Mersington reported George Lockhart of Carnwath against the Creditors of Nicolson, in a declarator of recognition of a part of the lands of Laswade, holding ward of the late Archbishop of St Andrews, and gifted by him to William Montgomery, for the behoof of the deceased President Lockhart. The defences were, 1mo, Against the severity of this feudal delinquency, (but that can only be rectified in a Parliament,) and that Sir William's charter from the Bishop was to his heirs and assignees, which Sir Thomas Craig interprets to be a tacit concession to the ward vassal to alienate, as having his implied consent. 2do, That the holding was unclear, being likewise a sum of money. 3tio, That the superior after the recognition was incurred, and he knew of it, accepted of the feu-duties and other casualties, which was a renouncing and passing from the recognition, and aknowledgment that he still continued his vassal. Answered, A charter of ward-lands hæredibus et assignatis, is only a consent to their assigning before infeftment be taken thereon, but not thereafter; as was found 5th February 1663, Lady Carnegie, voce Superior and Vassal. To the second, though there be a special duty, yet it is not payable nomine feudifirmæ, but only superadded to the servitia debita et consueta; and though wards are to be coarctate on all occasions, yet where the reddendo is unclear, feudum militare præsumitur, as the true ancient holding. And to the third, nullo modo relevat, seeing the accepting the feu-duties after the gift cannot prejudge the donatar's jus quæsitum; and as little before it, because non constat what may be the event of the declarator, as was found in a declarator of escheat, 6th June 1666, Earl of Cassilis contra Agnew, No 3. p. 6408.; and in the case of a minister accepting a tack-duty, this was found no homologation of the tack; Chalmers against Wood, No 78. p. 5698. The Lords repelled the Creditors' defences; and declared in the recognition.
Fol. Dic. v. 1. p. 430. Fountainhall, v. 1. p. 699.
