Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
The University of Glasgow v. Hamilton of Dalziel
Date: 27 March 1707
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The university of Glasgow having purchased the lands of Shields and Burngrange, which hold of Hamilton of Dalziel, they present to him a charter and a year's rent, and crave to be admitted vassals in these lands, for stopping the casualty of nonentry, &c; as was found, 9th February 1669, Black against French.
Answered for Dalziel, the superior,—They being a community and corporation, he was not bound in law to receive them; and they never dying, it was to cut him off from all the casualties of his superiority in time coming; et nemo debet lucrari cum alterius jactura.
And they having taken instruments on his refusal, applied to the Lords for letters to charge him, Alleging,—That the laws, and Acts of Parliament, obliging superiors to receive apprisers and adjudgers for a year's rent, made no distinction whether it was a community or private party; and sometimes were bound to receive more than one as vassals, which stopped their casualties to the death of the last of them.
The Lords considered this as a general case, where the road was not yet pathed. Therefore resolved to hear and determine it in June. Stair, Instit. book 2, tit. 2, § 41, states the case, and shows it yet undecided; and proposes an overture and remeid, that the corporation name a person to be their feoffee and trustee, whom the superior shall receive, and by his death the casualties shall open: and this I find to be the French practice, as is observed by Molineus ad Consuetud. Paris, and Basnage, in his Commentaries on the Customs of Normandy; and which they call un homme vivant et mourant, who represents the corporation, and salves the superior's right from being wholly extinct and absorbed.
