Scottish Court of Session Decisions

Subject_1 HERITABLE and MOVEABLE.
Subject_2 SECT. IV.

Casualties of Superiority.

Ardkinglass
v.
E of Argyle.

Date: 30 November 1609
Case No. No 24.

A gift of ward and marriage, upon which no decree of the avail had been obtained, found to belong to the heir of the donatar. Otherwise if it had been liquidated.

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In a consultation for a question betwixt the E. of Argyle and the Laird of Ardkinglass, for this Earl of Argyle's ward and marriage, it was reasoned, That albeit Ardkinglass's father obtained the gift thereof in anno 1584, yet, because he had not raised declarator, intented action, nor made any lawful intimation of his right, that Archibald Campbell having obtained a gift of the said ward and marriage in anno 1609 in August, the assignation or discharge thereof granted by him to the Earl of Argyle, before any citation made by Ardkinglass, was a lawful warrant to the Earl, and elided Ardkinglass's subsequent intention, notwithstanding of the gift being anterior. It being answered that the posterior donatar could put the Earl in no better condition than he was himself, and he would never have prevailed against the first donatar, except he had prevailed against him by his diligence, in obtaining the first declarator, it was duplied, That his assignation to the Earl, or his discharge, was as if the Earl had taken the gift in his own person, in which case he needed no declaclarator; and alleged, that the like was practised betwixt John Cunninghame goldsmith, who was assignee to the Duke of Lenox, to the escheat of the Earl Bothwell, and thereupon had obtained a general declarator; and, when he came to pursue a particular declarator, and called the Earl of Home, he defended himself by the particular gift given to him by the King of his own part of the debt owing to him by the Earl Bothwell, long before any declarator intented by the said Lord Duke or his assignee; and so the Earl of Home needing no declarator against himself, was to be preferred; which exception the Lords found relevant, and assoilzied the said Earl of Home. It was, at that same consultation, affirmed, That a gift of ward aud non-entries being given to A. B. of lands whereof John Logan of Couston was sub-vassal, and the said John obtaining a posterior gift thereof, the first donatar seeking declarator, John Logan defended by his posterior gift; and the pursuer alleging the anteriority of his gift and diligence in his declarator, the Lords found that John Logan's gift being anterior to the action of the first donatar, the said John Logan being actual possessor of the lands, and having obtained gift before the intenting of declarator by the first donatar; the said John, albeit he was only a sub-vassal, needed no declarator, but should be preferred to the first donatar. These practiques were alleged by Mr William Oliphant. In the consultation of that same action, it was questioned, Whether, if the gift of ward and marriage of the Earl of Argyle obtained by this Ardkinglass's father in anno 1584 fell to his executors or to his heir. It was resolved that it fell to his heir, and could not come under testament, because it was not liquid. But if decreet had been obtained upon the avail thereof in old Ardkinglass's time, it would have fallen under his testament. For confirmation of this resolution, there was alleged a a practique betwixt the Earl of Cassillis and Lord Glamis, and another betwixt Sir William Keith and the Laird of Leslie.

Fol. Dic. v. 1. p. 367. Haddington, MS. No 1667.