A superior by a writ under his hand, renounced and discharged in favour of the vassal all feu-duties and casualties.
Found that this was merely personal, and binding only during the granter's life.
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Crocerig reported Pringle of Greenknow against the Earl of Home, mentioned 20th Jan. 1698, voce Superior & Vassal. Greenknow claimed absolvitor from the 17 merks of feu-duty paid out of the lands of Rumbletonlaw and West-Gordon, and other emoluments of superiority due to the Earl as over-lord, and to be free from attending his courts and being thirled to his mill, because, by a writ under the Earl's father's hand, he had renounced and discharged all these casualties. Answered for the Earl, None of these obligements can tie me, unless I represent my father, the granter; neither is a perpetual discharge of a feu-duty a habilis modus to extinguish it, nor is it real contra fundum, but merely personal upon the granter and his heirs; yea it is against the nature of a feu to discharge the recognizance and acknowledgment which the vassal owes to the superior; and it is inter essentialia feudi to have a reddendo; and to discharge it in perpetuum is equivalent as if it had none at all; yea, it will not so much as militate against the granter's successor for any years, but allenarly so long as the granter continues to have right to the superiority; for if he be legally denuded, then his singular successor may claim the feu-duty; neither will the discharge exclude him, reserving their recourse against the granter and his heirs. Replied, The Earl must be presumed to be heir, unless he instruct by what singular title he possesses; and till then he cannot quarrel his father's discharge. The Lords found, that affirmanti incumbit probatio, and seeing they libelled and replied on his representing, and that being their medium concludendi, they must prove it. If the Earl were pursuing his vassal, he behoved to shew his title; but in this process of declarator against him, he needed say no more but deny his representation, and if they succumbed, he would be assoilzied from this process; for the Lords unanimously agreed that the foresaid perpetual discharge of the feu-duties and other casualties and astriction were merely personal, and only binding during the granter's lifetime, or his right, but could not operate against a singular successor.
