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Scottish Court of Session Decisions >>
Earl of Argyle v The Laird of M'Leod. [1672] Mor 8533 (19 July 1672)
URL: http://www.bailii.org/scot/cases/ScotCS/1672/Mor2008533-033.html
Marriage of a vassal who held lands both of a subject and of the Crown, was found to belong to the King, by his prerogative.
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Archibald Campbell, as donatar by the Earl of Argyle, pursues the Laird of M'Leod, for the avail of his marriage, as it is taxed by his infeftments, granted him by the Earls of Argyle. The defender alleged absolvitor, because he holds lands ward of the King, who, by his prerogative, hath the benefit of his vassal's marriage, although he be not the most ancient superior. The pursuer replied, That albeit the King's prerogative doth always prefer him in simple wards, that cannot be extended to taxt-wards, for the ward being taxed, becomes in the nature of a feu; and therefore both superiors’ wards being taxed, and the marriage likewise, for a small duty, both should have the taxed duty; or if the pursuer's right were simple ward, the preference of the King could only import an abatement of the avail of the marriage, as to the sum due to the King by the taxed marriage; for the ground of the avail of a vassal's marriage being, that the vassal should not contract affinity without consent of the superior, the marriage due to the King being taxed, the King hath thereby allowed the vassal to marry as he pleases; so that his other most ancient superior, of whom he holds ward, ought not thereby to lose his privilege of offering him a wife, and of the single avail of his marriage, if he marry without his superior's offer, and of the double avail, if he marry contrary to his superior's offer; otherwise it will be easy to evacuate the interest of all superiors as to their vassal's marriage, by infeftments of taxt-ward holding of the King; and as the King, if he had given several charters taxt-ward, might claim the taxt-marriage by all the charters, so the marriage due to the King and this superior being both taxed, both claim the taxed avail.
The Lords sustained the defence, and repelled the reply; and found, That one marriage was only due by a vassal, and that albeit the King might claim the greatest taxed duty in any infeftment, yet he, nor no other superior, could claim but one taxed value for the marriage of the same vassal, and so found the King only had right to this marriage.
