Scottish Court of Session Decisions

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

Creditors of Eymouth

Date: 8 February 1757

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Lord Home, as Lord of Erection, had right to sundry feu-duties, payable out of these lands of Eymouth, of which the crown, by the Act of Parliament 1633, was superior. The proprietors of these lands had sold parts of them and the purchasers had taken charters from the crown for payment of a proportionable part of the feu-duty payable out of the whole, but without defining what that part was, by which means my Lord Home had a feu-duty that was formerly paid by one to seek from perhaps twenty, and without knowing what part to demand from each: the question was, Whether he could not poind any part of the ground for the whole feu-duty?—And the Lords unanimously found that he could, but that he could have no personal action against the several heritors who had been thus multiplied, except in proportion to the parts of the feu which they held, and with the rents of which they intromitted.

Lord Kaimes was of opinion, upon the general point, that if a feu was in this manner divided without the voluntary act of the superior, he would have a poinding of the ground for payment of the whole feu-duty out of any part of the divided feu; and he put the case of the superior being obliged to enter several heirs-portioners, or to enter several adjudgers of the feu; and he thought, in this case, that Lord Home, being superior so far as uplifting the feu-duties went, and the feu being divided without any act of his, he could have poinded any part of the ground for the feu-duty of the whole, even supposing the particular feu-duty payable by each of the purchasers had been mentioned in his charter; but in this the President differed from him, and put his opinion wholly upon the purchasers' neglecting to get the feu-duties specified in their charters.