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Home of Wedderburn v George Park of Foulfuirdleys. [1680] 3 Brn 357 (4 June 1680)
URL: http://www.bailii.org/scot/cases/ScotCS/1680/Brn030357-0464.html Cite as:
[1680] 3 Brn 357
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Home of Wedderburn v. George Park of Foulfuirdleys
Date: 4 June 1680
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George Park of Foulfuirdleys holds his lands feu of Home of Wedderburn, under this irritant clause, that, sub pæna amissionis feudi, he shall ride and wait upon his superior whenever he shall be required to attend him; and this clause is in the charters of the most part of Wedderburn's vassals. And, upon a debate betwixt him and them in 1638, the Lords found, if Wedderburn called them to attend him in his own private concerns, then it was upon his charges; but if it was on any public concern of the kingdom, then their attendance in that case behoved to be upon their own proper expenses; yea it bore, when he was bound to entertain them, he might set them down at the table, and give them meat with his servants; though Home of Ninewalls, and some other good gentlemen, hold of him by this tenor. It may be doubted if they may perform these servile parts by a substitute; but it is certain, where they find the terms dishonourable, licet iis refutare feudum, and abandon it to the superior.
In June 1679, when the heritors were called to the West against the rebels, Wedderburn required Foulfuirdleys and other vassals to attend him, conform to the reddendo of their charters; Foulfuirdleys went indeed to the host with the heritors, but did not attend his superior; whereupon he convenes him in his own baron court, (for by their rights they are liable to answer to his head courts if cited, and curia domini et pares curia; are most competent, especially to judge on feudal prestations and services;) and fined him in 100 pounds Scots. Foulfuirdleys suspends, 1 mo, That he was not lawfully cited, being only cited on the ground of the lands, and he dwelt alibi. 2 do, He had lands holden of the king; and so, being called forth by his proclamation, he was obliged obedire domino antiquiori in a competition; as is decided in all other casualties.
Answered, to the 1 st,—The superior was bound to know no other dwelling but the land he had given him; likewise he had labouring there, in his own hands, and so it might soon come to his knowledge. To the 2 d,—The king's command and Wedderburn's were ad idem, and it detracted nothing from the king's service that the suspender rode in his superior's company and retinue; and he ought not to be permitted to contemn his superior.
This debate being reported, the Lords found he was obliged to have attended his superior, and that in doing of it he likewise attended the king; and there was no interfering or incompatibility of duty or commands, but both tended ad eundem finem et effectum; therefore they repelled the reasons of suspension: but they retrenched and modified the fine to 50 pounds Scots.
