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Scottish Court of Session Decisions >>
Lord Lindsay v Hamilton. [1590] Mor 13377 (00 February 1590)
URL: http://www.bailii.org/scot/cases/ScotCS/1590/Mor3113377-002.html Cite as:
[1590] Mor 13377
Found that in computing recognition, all such lands are to be understood as are under one infeftment, and under one duty, though not united.
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The Lord Lindsay pursued for recognition of certain lands of the barony of Abercorn, holden ward of the said Lord, analzied by James Hamilton. The reason of recognition was founded only upon a part of the lands, which the said James held of the said Lord, so the said Lord passed from any alienation but of the lands of only. It was excepted peremptorily against the summons, That there was no recognition by alienation of the said lands of because, conform to the law of recognition, and practice observed thereintill, the most part of the lands that are holden of the superior, in ward, ought to be analzied, yet true it was, the said James held the lands of only as a ten merk-land; and also held all the rest of the said lands, which were thirty-eight merk-lands, in uno infeofamento, et in una tenendria, et in uno reddendo; and so the libel concluding and assuming only upon the , which was but a ten merk-land, et non plus quam dimidium totius, prout requiritur ut res cadat et ad superiorem dominum revertatur, could never make the said lands to be recognosced, and fall into the superior's hands. It was replied, That albeit the said James held the said lands contained all in one charter, and for one duty, yet, in respect the said lands lay discontiguous, and there was no union, it could never save the defender from the fall of recognition, if he analzied; nam ut sasinæ fuerunt tenementa diversa, et non unita And also, if a lord or baron hold of the King three or four baronies in ward, if he analzie most part of any one of them, the same may be recognosced, and fall in the King's hands, nam quæ est ratio totius quoad totum, eadem est ratio partis quoad partem, et si vasalus totum feudum alienaverit, totum omittit, ut in F. Lib. 2. T. 38. De vasallo qui contra constitutionem Lotharii.
The Lords, after long reasoning at the bar, and amongst themselves, found the exception relevant, in respect of the charter and disposition, which was, that all that was contained in one infeftment, and under one duty, albeit there was no union alleged.
