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 Duke of Montrose v. Claud Hamilton of Barns and the other Feuars of Kilpatrick
Date: 10 January 1710
Click here to view a pdf copy of this documet : PDF Copy
King Robert the Bruce, according to the devotion used in those times, mortifies and dotes the lordship of Kilpatrick, (cella sancti Patricii,) to the monks of the abbacy of Paisley, but reserves a feu-duty of five chalders, and half a boll of oatmeal, to be paid out of it to the castle of Dumbarton, which some alleged was meal for the dogs then kept in that place for hunting the wolves which infested that part of the country; but others more probably conjecture, from its name given it by Skeen, voce Pension, and others, of the watch-meal of Kilpatrick, that it was for the sustenance of the garrison of Dumbarton. This feu-duty coming by progress to the Dukes of Lennox, and from them to Montrose, he pursues the feuars liable in payment, and obtains a decreet in foro against them; and some controversies arising betwixt them, the vassals suspend on thir reasons:—1mo, That, by the decreet, we are allowed deduction of the cess effeiring to the said five chalders of victual, and yet the Duke refuses allowance thereof. 2do, That they offered to pay him conform to the Linlithgow measure, or at the rate of eight stone per boll by the 6th Act 1696; but the Duke will have it by a greater measure, which he calls that of the shire of Dumbarton, which exceeds the Linlithgow measure in four or five pints; the Linlithgow firlot containing twenty-one pints and a mutchkin, and the Dumbarton being twenty-five pints and a choppin; at which rate their five chalders of victual will, by this extravagant measure, be near six. 3tio, The Duke obliges them to carry it to the Clyde-side, where they have no convenience in delivering it, whereas it were more equal for both that his chamberlain came and measured it upon their barn-floors.
Answered to the first,—That this castle-ward duty being a part of the King's patrimony, it can pay no cess; as was lately found at Exchequer, betwixt my Lord Kelly and the Chamberlain of Fife: and as to the decreet, it is noway res judicata quoad that point, but only an interlocutor yet subject to the Lords' review. To the second,—When this watch-mail was constituted there was no such measure known as that of Linlithgow, which was not introduced till the 96th Act 1503, and therefore it must be the measure of the shire where the lands lie, the Linlithgow measure being only the rule and standard in buying and selling. To the third,—By the feudal law, vassals are bound to bring their feu-duty to their superior's mansion-house; and yet, for their ease, the Duke is content to receive it from them at the ferry-dyke.
The Lords, as to the cess, being unclear, resolved to hear it in their own presence; but, for the measure, found that of Dumbarton behoved to be the rule; and, for the feuars' ease, allowed either party to condescend on and design a particular place, where all the feuars might bring their proportions and quotas, and the Duke to have one yearly there, to see it measured. Me referente.
