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La. Cathcart v Vassals. [1629] Mor 4176 (1 July 1629)
URL: http://www.bailii.org/scot/cases/ScotCS/1629/Mor1004176-006.html Cite as:
[1629] Mor 4176
Act 1606, how far extended. - After this act what the effect of Superior's consent.
La Cathcart v. Vassals
Date: 1 July 1629 Case No. No 6.
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Found that ward-lands of the principality could not be disponed feu after the act of Parliament 1606.
Fol. Dic. v. 1. p. 296. Kerse, MS. fol. 112.
*** See Act 16th Parliament 1633, where the contrary is understood.
*** Durie reports the same case:
The Lady being donatar to the ward of the lands by decease of her husband, and pursuing thereupon removing, the lands being holden by the Lord Cathcart of the Prince, and some of the defenders who were vassals to the Lord Cathcart, by a blench holding of himself, alleging there could be no ward, because herself was infeft, conform to the contract of marriage, in these lands, to be holden of the Prince; likeas her infeftment was confirmed by the Prince, so that there could be no ward;—and the Lady contending, that albeit that were true, yet she could not thereby be debarred from the right of the ward granted to her, for she might use any of the titles, either her liferent-right, or the right of the ward, against this excipient who had no right to exclude the ward, his infeftment not being confirmed; ——The Lords found the exception relevant; for they found, that there being an infeftment granted to be holden of the superior, and confirmed by him to the vassal, there could not be any ward, that vassal living, and being infeft, holden of the superior, and confirmed, as said is; so that the vassal so infeft might pursue the sub-vassal of that land, upon the ground of his said right confirmed, but had no right to pursue upon any ward which was not fallen; whereas, if the Lady's right had been made to be holden of the granter, and not of the superior, the superior's confirmation would not eo casu have staid the ward. Item, In this process it was found, that a feu being given by the Prince's vassals since the year 1606, not being confirmed by the Prince, excluded not the ward, seeing the Prince was found hoc casu, ought to be repute as a subject intuitu regis, and therefore that the act of Parliament did militate here. See Jus Terth.—Personal Objection. —Ward.
Act. Advocatus.Alt. ———.Clerk, Gibson.
Durie, p. 456.
