Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL
Subject_2 SUMMER SESSION.
Date: 23 February 1683

His Majesty's Advocate
v.
The Creditors of Urquhart of Cromarty

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His Majesty's Advocate's declarator of recognition against the Creditors of Urquhart of Cromarty, was this day advised and decided. The Lords find, as to the first point, that alienations though without consent of the superior, yet if they be confirmed before the major part be annalyied, can neither recognosce themselves, nor come in computo to make recognition as to any other lands. As to the second point, find the confirmations after the major part is alienated, and before the gift of recognition, does secure themselves, but must come in computo to make up the major part for the recognoscing of what is not confirmed. 3tio, Find the novo-damus does so secure against the recognition, that all the alienations before the novo-damus cannot come in computo to make up the ground of the recognition. And find, 4to, Notwithstanding the infeftments whereupon recognition is required be likewise in lands of different holdings, as holding feu or blench, and belonging to different heritors, yet they must be considered as a ground of recognition quoad valorem of the whole sums whereupon the infeftment was taken, without respect to the relief which may be expected out of those other lands. 5to, Repel the allegeance, that the infeftments were in trust; as it is condescended on, viz. that they were in the vassal's charter-chest, and that he retained the possession; except the vassal's dole and fraud were instructed, or that the gift were to the vassal's behoof. To the 6th, The Lords repel the allegeance founded upon the resignation made by old Cromarty in favours of his son, albeit bearing a confirmation, in what relates to rights made to the vassal, and not to rights made by the vassals. 7mo, Repel the allegeance founded on the inhibitions prior to some of the grounds of the recognition; as they had done supra, in Muirie's case. 8vo, They find the infeftments that were, habili modo, extinguished before the con-course of the major part, cannot come in computo. 9no, They find that seasines intrinsically null are not to be respected as a ground of recognition.

But I think the not registration of the seasine, within sixty days, is not such an intrinsic nullity. Yet see Craig, Feudorum lib. 3, in the case of Mackenzie and Bain.

This, with John Hay of Murie's case, clears many debates that arose on recognitions. But the fourth and fifth articles of this interlocutor were looked upon as hard, and great stretches of this odious casualty of recognition. The fourth, because if the infeftment be also furth of blench and feu lands, why should it be all cast upon the ward lands: only they say, the vassal fecit omne quod in se erat, by giving it also out of the ward lands; and that it is likewise out of others, does not diminish the vassal's ingratitude and contempt of his superior. The fifth was grudged at, seeing there cannot be a more pregnant qualification of a trust and a conveyance, than to find a right in a debtor's charter-chest; which presumes it paid and retired, or led to his behoof: unless another way, quomodo it came there, by borrowing or stealing it, &c, can be condescended on; as in Fergusson and Seaton of Carriston's case, in 1678.

Vol. I. Page 222.