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Scottish Court of Session Decisions >>
Lord Carnegie v Lord Cranburn. [1662] Mor 10339 (19 February 1662)
URL: http://www.bailii.org/scot/cases/ScotCS/1662/Mor2510339-020.html Cite as:
[1662] Mor 10339
Subject_1 PERSONAL and TRANSMISSIBLE. Subject_2 SECT. II.
What Right go against Heirs.
Lord Carnegie v. Lord Cranburn
Date: 19 February 1662 Case No. No 20.
A declarator of recognition may be pursued after the vassal's death.
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The Lord Carnegie being infeft in the barony of Dirleton, upon a gift of recognition, by the King, pursues a recognition against the Lord Cranburn, because the late Earl of Dirleton, holding the said barony ward of the King, had, without the King's consent, alienated the same to Cranburn, and thereby the lands had recognized.—The defender alleged, first, No process, because he is minor, et non tenetur placitare super hæreditate paterna; 2dly, The recognition is incurred by the ingratitude and delinquency of the vassal; yet delicta morte extinguntar; so that there being no other sentence nor litiscontestation against Dirleton in his own life, it is now extinct, which holds in all criminal and penal cases, except in treason only, by a special act of Parliament.
The Lords repelled both the defences, the first, in respect that the defender is not heir, but singular successor, and that there is no question of the validity of his predecessor's right in competition with any other right but the superior's; the other, because recognition falls not as a crime, but as a condition; implied in the nature of the right, that if the vassal alienate, the fee becomes void.
