Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by JAMES BURNETT, LORD MONBODDO.

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Date: 26 January 1755

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[Kaimes, No. 88.]

THE question here was, Whether bygone feu-duties, due by the vassal, belonged to the heir or executor of the superior? And the Lords unanimously found, dissent, tantum Præside, that they went to the executors. They thought that a feu-duty was no more than a perpetual tack or location, executed after the feudal form; and therefore that bygone feu-duties were to be considered as bygone tack-duties.

Kaimes laid down this general principle, that, in the matter of a succession, every thing that was due was, in the eye of law, considered as paid; and therefore, the feu-duties, being due, were to be considered as in the pocket of the defunct superior,—in which case they would no doubt have been the property of his executor.

In the year 1718 the contrary was found, or, which was the same thing, it was found that the byrests of feu-duties were a burden upon the vassal's heir, without relief against his executor. But this decision the Lords paid little regard to; and Kilkerran informed the Court that it proceeded upon report of my Lord Royston, who, observing Mr Dundas of Arniston at the bar, asked him if he was in the cause? And upon his telling him that he was not, my Lord next asked him what he thought of the question? He answered by asking his Lordship a question, Whether he had ever heard that when a man purchased lands holding of a subject-superior, and got a charter from that superior, with a novodamus, there ever was a question betwixt that purchaser and the executors of a former superior about the bygone feu-duties? This hint Lord Royston immediately communicated to the Lords,—upon which the decision went unanimously in favour of the executor.