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A50746 Pleadings in some remarkable cases before the Supreme Courts of Scotland since the year 1661 to which the decisions are subjoyn'd. Mackenzie, George, Sir, 1636-1691. 1673 (1673) Wing M192; ESTC R27547 158,540 250

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frugal because they hope their Estate may remain with their Posterity encourage not such as resolve to shake loose by their Prodigality what was establish'd by their wise Predecessours By favouring the Creditors Defences you will but gratifie the prodigality of Heirs or the laziness of Creditors whereas by sustaining my Clients pursute you will secure us as to our own pactions and as to your decisions you will perpetuat Noble Families and bound the Luxury of such as are to succeed The Lords sustain'd the Pursute and repell'd the Defences propon'd for the Oreditors For the Lady Carnagie and her Lord against the Lord Cranburn THIRD PLEADING Whether Tax'd-wards be lyable to Recognition My Lord Chancellor THe late Earl of Dirletoun having no Children besides two Daughters and having an Estate consisting of Lands in Scotland and England did very judiciously at first resolve to marry one of them in Scotland and the other in England and in pursuance of this design he bestowed Elizabeth the eldest upon William Earl of Lanerick Secretary of Scotland Brother to Duke Hamiltoun but which was more a person admir'd for his heroick Vertues and whose Alliance was courted at any rate by the most eminent Families of both Kingdoms The younger of these Daughters named Diana was match'd thereafter to the Lord Cranburn and as the Earl of Lanerick could not but have justly expected all or at least the far greatest share of that Estate So the Lord Cranburn could scarce have expected thereafter any thing above an ordinar Portion Yet such is the capriciousness of old men that the Earl of Dirletoun did in anno 1649. by the impressions of some who were inveterat enemies to the Family of Hamiltoun dispone the Lands of Innerweek Fenton c. failing Heirs-male of his own body to Iames Cecil his Grand-child and the Heirs-male of his body His Majesty finding that the said Estate was most illegally dispon'd to Iames Cecil without His consent as Superiour they holding Ward of Him and that he had thereby defrauded the just expectations of so worthy a person as the Earl of Lanerick and so the Lands recogniz'd by the said Disposition did gift the saids Lands to the Lord Bargeny for the behoof of the Earl of Lanerick upon which Gift of Recognition there is now a Declarator pursued by the Lady Carnagie eldest Daughter to the said Earl of Lanerick who thereafter became Duke of Hamiltoun wherein she craves that it may be declar'd by you that she has the only Right to these Lands There are very many Defences propon'd for the Lord Cranburn which I shall endeavour thus to satisfie The first is Recognition has only place in feudo recto proprio whereas these Lands hold Tax'd-ward in which manner of holding all the casualities are taxed to a very inconsiderable sum which sum is designed to be the only advantage that shall accress to the Superiour and the reason why Ward lands recognize when they are sold without the Superiours consent is because the Superiour having so great interest in the Lands which hold by simple Ward as to have the Ward and Marriage of the Vassal the Law did therefore obliege him not to alienat that Land without the Superiours consent which reason ceaseth where the Ward is tax'd the Superiours interest becoming very inconsiderable by the Tax nor can it be imagin'd but that the Superiour having dispensed with the great casualities of Ward and Marriage has consequently dispensed with the said restraint Cui datur majus datur minus praesertim ubi minus inhaeret majori est ejus accessorium For satisfying which difficulties your Lordships will be pleas'd to consider that our Law appoints all Ward-lands to recognize if sold without the Superiours consent and makes no distinction betwixt simple and tax'd-ward the general is founded upon express Law and there is no express warrand for excepting tax'd-ward 2. Seing these Lands could not have been fold before they were tax'd by what warrand can they be sold since they were tax'd Seing though the casualities of Ward and Marriage were tax'd and thereby these casualities expresly remitted except in so far as they are tax'd yet there is no power granted to sell without the Superiours consent Nor is that priviledge remitted by the Superiour Et fendum alteratum in una qualitate non intelligitur alteratum in aliis actus agentium non operantur ultra concessa 3. The power of selling without the consent of the Superiour is different from the casualities of Ward and Marriage which are here only tax'd for Fewholdings are oft-times burdened with this restraint and this restraint was of old taken off expresly by warrands under the Quarter-seal without taxing the other casualities So that this priviledge differs from these and the one cannot be comprehended under the other The second Defence is that by the Feudal Law Recognition ob alienationem feudi est crimen delictum feudale against which error etiam probabilis ignorantia excusat as is clear lib. 2. tit 31. The words are Quod enim dicitur alinatione feudum aperiri domino intelligendum est cum à scientibus alienatum est beneficium which are the words of the said Law whereupon Socinus reg 153. though he do give it as a rule that Emphyteuta rem emphyteuticam vendens a jure suo regulariter cadit conform to the civil Law l. ffinal C. de jure emphyteutico he subjoyns these words Fallit ubi emphyteuta venderet ignorans rem esse emphyteuticam and accordingly Craig de recognitione lib. 3. diages 3. and in the case of disclamation lib 3. diages 5. layes down for an undoubted principle that ignorantia crassa excusat feudalia delicta And here the subject of the question is not in jure in thesi whether Ward-lands should recognosce but in facto hypothesi his Right being of the nature and in the terms foresaid he might dispone without hazard as to which an error in him who was an illiterat man was very excusable especially having consulted Peritiores and having been assur'd by very eminent Lawyers that there was no hazard in disponing those Lands without the Superiours consent they holding Tax'd-ward which was sufficient to have defended him in feudo amittendo To which it is answered that ignorance of the Law excuses no man and the case having been at best dubious the Vassal should not have hazarded upon what the Law might construct to be a disowning of his Superiour and since every man is oblieged to know the nature of his own Few the Law doth presume that every man doth know it Nam quod inesse debet inesse presumitur and therefore Craig doth very well conclude pag. 344. tit de recognitione that ignorantiam pretendens vix audiendus est cum sit crassa ignorantia feudi sui conditionem ignorare and though he observes there that excusabitur qui feudum suum non militare credidit cum militare est yet that cannot be