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Scottish Court of Session Decisions >>
Douglas, Laird of Kelhead v Torthorell, &c. [1670] Mor 15012 (25 June 1670)
URL: http://www.bailii.org/scot/cases/ScotCS/1670/Mor3415012-010.html Cite as:
[1670] Mor 15012
Subject_1 SUPERIOR AND VASSAL. Subject_2 SECT. IV.
Can a Superior interpose another betwixt himself and the Vassal, or divide Superiorities?
Douglas, Laird of Kelhead v. Torthorell, &c
Date: 25 June 1670 Case No. No. 10.
A superior cannot interpose any person betwixt himself and his immediate vassal.
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In a declarator of non-entry at kelhead's instance, as being infeft in the barony of Kelhead, whereof the lands of———-—were a part, it was alleged, That the defeadear's predecessors were vassals to the Earl of Carlyle, and were never entered by the pursuer or his authors; neither could the pursuer have right to their superiority, because he himself was only infeft base to fee holden of the Earl of Queensberry, who could not interpose a superior betwixt them and him, and could have only right to the by-gone non-entries, which they were not obliged to pay, until the Earl of Queensberry should grant them a precept for infefting them in the said lands to be holden of him as superior. The Lords did ordain the whole by-gone non-entries to be consigned in the Clerk's hands, until Kelhead should procure a charter and precept, subscribed by Queensberry, for receiving them as his vassals; which being done, they ordained all the preceding non-entries to be paid to the pursuer, not as superior, but as having right by assignation, which was equivalent as if he had been donatar; but they found, that his right being base, he could not be their superior.
1670. July 2.—In the foresaid declarator of non-entry, at Kelhead's instance against Torthorell, the pursuer insisted for the mails and duties of the lands from the date of the citation of the defender, as having been in mora from that time. It was alleged, That there being no general declarator of non-entry, and the citation being only upon a summons concluding both special and general declarator, there could be no decreet of the mails and duties but from the date of the sentence and after probation in the special declarator. The Lords, after reasoning among themselves, inclined to give decreet for the mails and duties from the date of litiscontestation in the special declarator; but, because the pursuer alleged there was a practick in terminis, finding them due from the date of the citation, they ordained the practick to be produced.
Fol. Dic. v. 2. p. 406. Gosford MS. p. 121. & 126.
