Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 SUPERIOR AND VASSAL.
Subject_3 A year's free rent is exigible for the entry of a singular successor, either in lands or houses, where such entry is not taxed.

John Aitchison of Rochsolloch
v.
Thomas Hopkirk and Others

Date: 14 February 1775

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[Faculty Collection, VII. 29; Dictionary, 15,060.]

Hailes. If we listen to the plea of the defenders, we shall cut deep into the rights of almost all the subjects-superior in Scotland. It is impossible to resist the argument from custom. All the instances produced show, that subject-superiors exact sometimes less sometimes more, but constantly more than the double of the feu-duty. If they can exact more than double the feu-duty, it is plain that they can exact a year's rent, otherwise all superiors would be extortioners, and all vassals would be willingly oppressed. This explains the meaning of the phrase lands, if it were doubtful. It has been said, that all houses in Scotland are either houses in boroughs, or farm-houses, or fortalices: that the first two do not pay any composition, and that the last cannot, as being part and pertinent of the lands. In order to prove that all houses other than houses in boroughs and farm-houses are fortalices, reference is had to a decision mentioned by Craig, tit. 2, dieg. 9, § 18, Murray of Hallyards against Earl of Morton; but that decision only proves that the Court found that a house having two storeys was in so far to be considered as a fortalice as that a warning on six days might be allowed for removing the possessor from it. Craig calls this benignior sententia. Whether it was a right judgment, I inquire not. It is certain that Craig knew the difference between a fortalice and a common house for habitation; l. 2, dieg. 8, § 3. It is also certain that our forefathers were so exact as to distinguish between fortalicia and forceletta, great and small fortalices. It is therefore impossible that they could have failed to distinguish between fortalices and common houses for habitation, though neither in boroughs nor on farms.

Kaimes. I inclined to be against the superior, not on law, but for reasons of expediency. Now I see a very general practice which confirms the law.

Gardenston. On considering this case, with the analogy of law in royal boroughs, I was against the superior; but, after hearing the cause and seeing the instances given of practice, I am for supporting the right of the superior: but I would vary the interlocutor so far as to allow a deduction of the expense of repairs communibus annis, that the superior may not get more than the vassal reaps. I would not open a door for the rapacity of superiors.

Monboddo. I had little doubt of the interlocutor when I read the papers; still less when I heard the pleadings. The rule must be the real rent for one year. How can we determine that it should be one-third or two-thirds? It is impossible to fix one general rule from the condescendences, for the practice of superiors varies. I can give no other deductions than for repairs and public burdens. It is impossible to go back to examine the original value of the subject 100 or 200 years ago. Were I sitting here as a legislator, I might listen to many of the arguments urged by the feuars: here, I must say what is law, not what ought to be law.

Coalston. We are not at liberty to alter this feudal law. The superior is entitled to a year's rent of the subject at the time of the entry; but he can have no more: deductions must be made of public burdens and feu-duty, and also of a reasonable allowance for repairs. There are two or three cases where the Court did use liberties, in favourable circumstances, with the statute; but nothing of this sort occurs here.

On the 14th February 1775, “The Lords found the pursuer entitled to demand a year's rent from singular successors, as the subject is set, or may set, with deduction of public burdens and feu-duties, and a reasonable allowance for repairs;” adhering to Lord Alva's interlocutor in substance.

Act. R. M'Queen. Alt. A. Crosbie. Hearing in presence.