Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. Collected By JAMES BURNETT, LORD MONBODDO.

Sir John Maxwell
v.
Alexander M'millan

Date: 26 June 1740

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[Elch., No. 5, Superior and Vassal, and No. 4, Suspension ; Kilk., No. 4 Superior and Vassal; and C. Home, No. 280.]

Sir John Maxwell held the lands of Cathcart and Goldenlees blench of Blair of that ilk, who disponed the superiority to Alexander M'Millan, and he, upon his author's resignation, expede a charter under the seal of the Prince, of whom Blair held the lands. Before M'Millan infeft himself upon this charter, he raised a brief of division of the old extent of these lands, in order to ascertain, 1mo, The proportion of old extent that belonged to his lands, separate from that of Holms, which formerly made a part of the barony of Cathcart and Goldenlees, and belonged to another, both property and superiority ; 2do, The proportion of old extent that fell to the particular tenements and possessions composing the foresaid lands of Cathcart and Goldenlees. Upon this brief a service is expede; but, before it could be retoured, Sir John offered a bill of suspension, craving, that the retouring, recording, and extracting the said service, should be stopt, for these two reasons:—1mo, That the only evidence the inquest proceeded on, was a charter in 1671, bearing the barony of Cathcart and Goldenlees to be a twelve and a half merk land, and another charter in 1703, bearing the lands of Holms to be a merk land; which is no evidence at all, since a retour is the only proof of an old extent. 2do, Mr M'Millan has assigned the precept of sasine in his charter to three different persons, giving to each of them such a part of the lands as by the verdict of the inquest was found to be a forty shilling land, and reserving to himself as much as corresponded to that extent; thereafter he and his assignees were infeft, by which means there are four votes made out of one blench superiority, and the vassal, who held only of one superior, now holds of four ; which is a hardship he cannot be subjected to.

The reasons of suspension were debated on the bill, and the Ordinary on the Bills took the debate to report.

It was argued for Mr M'Millan,—1mo, That a suspension of a retour is a form unknown in our law ; that the known method of setting aside a retour, is by an assize of error, and sometimes, as an extraordinary remedy, a reduction before the Lords is allowed; but a suspension of a retour was never before heard of. 2do, The vassal has no interest to quarrel the retour, since, if there is any error in it, he cannot be prejudiced thereby ; whereas the superior has an immediate interest, as he is primarily liable to pay taxation, according to his old extent; and, as in the retour of heirs to the superiority, the old extent must be ascertained, Act 56, 1475, otherwise the retour will be null. 3tio, With respect to the splitting of votes, there is no law known to hinder it: besides, that it seems to be a little out of the vassal's way to be so solicitous about the qualifications of electors of members of parliament, especially of those who are his superiors. And 4to, As to the division of the superiority, whatever argument may be brought against it from the principles of the ancient feudal law,— yet, upon the footing feus are with us, there can be little difficulty in the matter. Feus were anciently donations for military service, and implied a variety of obligations of protection and fidelity ; whereas, now, both superiority and property are the subject of commerce, and as they may be bought, there is no reason why they may not be sold, either in whole or in part; the vassal can divide his property into as many parts as he pleases, why then should not the superior have the same liberty with respect to the superiority ?

To this it was Answered,—1mo, As to the method of application by suspension, it was necessary in this case, as it was then vacation, and it may be the more easily allowed, as there is a process of reduction of the retour presently depending. 2do, The interest of the vassal is visible ; for, though the superior is liable primo loco for the taxation, yet he has recourse against the vassal in proportion to the extent of his lands, and it is as necessary that the old extent should be mentioned in the retour of the property as of the superiority, and an error in either case will equally annul the retour. 3tio, Though there may be no express law against dividing of baronies into several votes, yet where that is done only with a view of creating votes, it is certainly against the spirit and meaning of the law; and whoever would take the trust-oath upon such a divided vote would be perjured* in an infamous degree. 4to, It would be a very great hardship, if the superior could, by dividing the superiority, create as many superiors to the vassal as he pleased ; by which means he would be liable to so many processes of non-entry, and so many other casualties falling by reason of different superiors; he must be at the expense of so many charters and sasines instead of one, which he had by his original feudal contract; and he must run so many different precepts against his superiors, if they refuse to enter him; in a word, he would be subject to so many other inconveniences, that in many cases it would be better for the vassal to give up his feu than hold it in this manner. It is laid down as a maxim, in the books de Feudis, Vassallum non cogi pro uno feodo duas fidelitates facere ; and B. 2. l. 55, § 1, where the division of feus is treated of, this is added as a necessary requisite, Ita tamen ut pro uno feodo vassallus plures dominos habere non compellatur. And this doctrine is supported by the authority of our best lawyers, particularly Craig, Dieg. 2, Book 2, versus finem, where he lays it down as a certain rule, that the superior cannot divide the superiority, because thereby the condition of the vassal is rendered worse; for the same reason he cannot interpose a superior betwixt him and the vassal without the vassal's consent. This is agreed on by all our lawyers, and applies strongly to the present case, as it seems more inconvenient to hold of many superiors than to have one interposed. For this reason likewise, by our law, when heirs-portioners succeed, the superiorities fall to the eldest, and the reason given for it by Stair, Craig, and M'Kenzie, is, ne deterior fiat vassalli conditio by the superiority being split and divided; and upon these principles we have a decision, July 30, 1678, Lady Luss against ———. Nay, so strict is our law in this matter, that, even in favour of creditors adjudging, it does not admit a division of the superiority ; in that case, Stair says, that the vassal need only take infeftment from the appriser that has the greatest interest, B. 2, Tit. 4, p. 17, though many specious reasons could be urged for a division in that case, which will not apply to this.

As to the argument drawn from the vassal's being empowered to divide his property into as many parts as he pleases, it is well known that there lies no direct action against the superior to force him to receive one vassal in place of another, either in whole or in part: he can only be obliged to it by the indirect method of adjudication, which is introduced by particular statute in favour of creditors, and cannot be extended to consequences, especially where there is not a parity of reason.

The Lords unanimously passed the bill: they all seemed to think that the vassal had an interest to see that his land should not be overvalued. Lord Kilkerran gave it as his opinion that a charter was no sufficient evidence of a forty shilling land ; and Lord President, Lord Dun, and Lord Arniston, were all of opinion that the superior could not divide the superiority without the vassal's consent.

* These were Arniston's words.