A part of a feu being evicted, an abatement was given of a proportional part of the feu duty.
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It having been determined, as observed No. 93. p. 16026. that the lands of Shanwell, part of the barony of Burleigh, were not astricted to Milnathort, the mill thereof, William and Andrew Harrowers of Milnathort, raised a suspension of their feu-duty payable for the said mill; which had been granted to their authors, with the astricted multures of these lands.
Pleaded for John Russel, factor on the sequestrated estate of Burleigh: Mrs. Margaret Balfour the proprietrix, whose creditors are now in possession, does not represent the granter of the feu, who alone can be liable in warrandice, but is a singular successor.
Pleaded for the suspenders: They are insisting in no action on the warrandice of their charter; but have suspended the feu-duty for a subject which has been evicted from them, Voet, ad tit. D. Si ager vectigalis.
For the charger: By the feudal law the causalties of superiority are not divisible, respecting the several parts of the feu; but are simply prestable for every part as for the whole: Thus a ward tenant must serve for the half of his feu, if the other half should perish; only, if it becomes burthensome, he may renounce the whole: By the civil law, no deduction is competent for an inconsiderable eviction, § 3. Inst. De loc. et. cond. L. 1. C. De jure emphyteutico. This is the case here; and the subject feued renders at present greater profit to the vassal than at the time of the grant.
For the suspenders: A feu-right is a perpetual tack; and the duty is capable of division and diminution, unlike the simple prestations, which are not mensurable by quantity, in more proper fees.
The Lords, 12th February, found that the suspenders were entitled to an abatement of such a proportion of the feu-duty as the subjects evicted bore to the whole feu, and no more: And, on bill and answers, adhered.
Act. R. Craigie et Bruce.Alt. Boswel.Reporter, Minto.Clerk, Forbes.
D. Falconer, No. 214. p. 258.
