Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR GEORGE AUCHINLECK OF BALMANNO.

The Laird of Wedderburn and the King's Advocate
v.
John Stewart of Coldinghame

Date: 4 February 1634

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John Stewart and Robert Douglas, donatars to the escheat and liferent of the said John Stewart of Coldingham, obtained decreet, in anno 1632, against the Laird of Wedderburn and sundry other of the vassals of Coldinghame, reducing their feus, for not-payment of their feu-duties for the space of two years, conform to the Act of Parliament Ja. VI, Par. 15, cap. 246.

The Laird of Wedderburn intents reduction of this decreet given against him for null defence, upon offer and consignation of the byrun feu-duties. In the which action, the King's Advocate compears for the king's interest, and concurs with Wedderburn, pursuer of the reduction, and alleges no such decreet could have been given at John Stewart's instance; because, long before the giving thereof, John Stewart was denuded of the superiority of all the vassals of Coldinghame, by surrender thereof in his Majesty's favours, upon his submission; and, upon Act of Parliament made by King Charles, in his first Parliament, cap. 14, the superiority of all kirk lands are decerned to pertain to the king since the commission in anno 1627; after the which time John Stewart had no right to the superiority, but only to the feu-maills, while he were satisfied thereof, conform to the king's decreet upon the submission. To the which it was answered, That the King's Advocate could not concur with Wedderburn, because he was at the horn. Then the advocate proponed the foresaid allegeance, for the king's interest, per se. To the which it was answered, That, albeit John Stewart was debarred, by his submission and the said Act of Parliament, from seeking the benefit of the said decreet of reduction; yet, seeing Robert Douglas donatar to the liferent of John Stewart; by virtue whereof he had right to the liferent of Wedderburn, vassal to John Stewart, by being year and day at the horn, and a declarator obtained thereupon, and that he had not submitted, and this casualty had fallen to him long before the Act of Parliament, wherein dispositions made by the lords of erection were excepted, and his gift being long prior to the same, could not be taken away by the said Act. To the which it was answered, That the donatar to John Stewart's liferent, by virtue thereof, had no right but to the maills and duties of Wedderburn's lands, fallen to his superior by his rebellion; and had no power, by that right, to reduce the vassal's feu, but to uplift the maills and duties. Which the Lords found relevant.

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