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Scottish Court of Session Decisions >>
Philliphaugh v Elliot. [1696] Mor 4179 (27 February 1696)
URL: http://www.bailii.org/scot/cases/ScotCS/1696/Mor1004179-008.html Cite as:
[1696] Mor 4179
Act 58th, Parliament 1641. - Whether the Superior can renounce his Casualties. - Paction contrary to the nature of Feu-rights.
Philliphaugh v. Elliot
Date: 27 February 1696 Case No. No 8.
A feu granted by a vassal of the Crown, upon the authority of act 58th, Parliament 1641, was not found sufficient to defend against the ward and marriage of the superior, falling due after the rescissory act 1661, cap. 15. notwithstanding of the salvo at the end of that act, of all rights and securities in favour of private parties, as the feu was not confirmed, which ought to have been done.
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The Lords advised the debate betwixt Lord Philliphaugh, as donatar to the ward and marriage of Douglas of Cavers, and Sir William Elliot of Stobs, the Laird of Gladstons, and other sub-vassals of Cavers, for bearing their proportion of 40,000 merks, to which the gift was by a backbond restricted, to be distributed as portions for the younger children of Cavers. There being a feu of these ward-lands given to Stobs in 1655, which was then lawful by the 58th act 1641, allowing ward-lands holden of subjects to be feued, Stobs contended it behoved to be subducted from the count, and could bear no part of the 40,000 merks. Answered, That the act 1641 being rescinded by the act 1661, though the feu secured quoad any casualties arising before the rescissory law in 1661, yet it could never defend against such casualties as fell after; because you might have confirmed it, and having neglected that remedy tibi imputes. Replied, There is a salvo in the end of the rescissory act, of all rights and securities in favours of private persons, under which this feu must be comprehended. Duplied, The reservation is only of the private acts past in these Parliaments in favours of particular persons, whom it was hard to prejudge, though the Parliament itself was funditus annulled ob defectum auctoritatis; and in the odious casuality of recognition, (yet more unfavourable than wards,) the Lords found the acts taking them away did not defend after the restitution in 1661, unless the parties did apply to the Exchequer after that time, and get them confirmed, Pitreichie contra Geicht, voce Recognition; 29th July 1672, Lord Halton contra The Earl of Northesk, Ibidem; 12th February 1674, Kilsyth contra Hamilton, Ibidem; and 7th January 1676, Cockburn contra Cockburn, Ibidem. The Lords found, though Stobs’ feu was granted tempore licito, yet the casualties now acclaimed being, due after the rescissory act 1661, the feu became thereby null, and cannot defend, unless it had been confirmed. There was also another point decided in this cause, that Stobs, if he founded on the back-bond, must not take it by halves, but must either take it or want it altogether, and cannot accept a part, repudiating the rest; but, if he would have any benefit by it, he must take it as it stands.
Fol. Dic. v. 1. p. 296. Fountainhall, v. 1. p. 716.
