case david viscount OF stormont son and heir of David late viscount of  stormont decease appellant John Henderson all tenant in the four town of  Lochmaben respondent that April scot r r the crown be kind tenant of the four  town of Lochmaben and their next of kin succeed to they be irremovable by the  heritor of the land be a rantee of the crown and such right be assignable by  the say tenant f interlocutor of the court of session affirm the respondent  state the follow case the land of Heightae Smallholme Heck and Greenhill  common call the four town of Lochmaben in Com Dumfries be part of the property  of the crown have be time out of mind possess by the respondent and their  ancestor as kind irremovable tenant anal they have be acknowledge as brown  such by the crown in ancient time and in different reign by the parliament  itself both in a legislative and judicative capacity and by the former  constable or keeper of his majesty castle of Lochmaben who under that title  only and not as proprietor levy the rend of the land in question which be  appropriate for the support of the castle the keeper of this castle do early  impose hardship and endeavour to levy exaction upon the tenant which give rise  to several complaint to the crown by a petition and complaint to king James VI  of Scotland the tenant of the say land complain that notwithstanding of their  be kind tenant and occupier of his majesty farm land and tenandry assign to  his majesty house of Lochmaben they be wreck and spoil by thief and  extortioned by the constable of the castle of Lochmaben etcetera whereupon his  majesty by his sign manual that June order the keeper of the castle of  Lochmaben to desist and cease from molest trouble or use of any violence  against those his tenant and to suffer and permit they peaceable to occupy  their possession as they the keeper shall answer to his majesty upon their  disobedience by another sign manual bear that his majesty understanding that  his poor tenant of his proper land of Heightae etcetera be and have be great  oppress particular by the constable and keeper of the castle of Lochmaben and  compel to pay several duty and do service which they and their predecessor be  never in use to pay or do therefore his majesty strict command the constable  of the say castle present and to come that they in no manner of way burden or  charge his say tenant and inhabitant of his say proper town and land to pay  any duty or do any service further than they and their predecessor be in use  to pay and do in time pass by a sign manual from king Charles ill June bear  that his majesty understanding that the poor and kind tenant of his proper  crown land of Heightae Smallholme Heck and Greenhill have be exorbitant raise  in their rend and service contrary to the express warrant of his majesty  grandfather year and grant to their predecessor upon weighty and good  consideration declare his royal intention that the say tenant shall have be  protect and these warrant obey as constant lease accord to the true meaning  thereof and further his majesty renew the say warrant and lease and authorize  the say tenant and their successor to possess and enjoy their respective land  they pay and perform yearly the rend and service pay and perform by their  ancestor year and prohibit and discharge the keeper of the castle of Lochmaben  or any who shall pretend right to the say crown land in all time thereafter  under all high pain to exact more rend or remove they from their ancient  possession so long as they thankful perform the same brown that the earl of  Annandale keeper of the say castle have settle the rend of the say land in way  of jointure to his lady which without consent of the crown he can not lawful  have do she and the viscount of stormont her second brown er p husband apply  to parliament and obtain a order or decree direct the tenant to pay their rend  to her a new valuation be make in of the value of the land in the county of  Dumfries by the commissioner of the land tax whereby the respondent interest  which have never be tax before be rate on account of their be kind tenant and  irremovable at one four more than the appellant videlicet at mark and the  appellant only at mark from that time downward till the year the respondent  and their ancestor to prevent distress upon their land pay the whole land tax  and get allowance of the appellant proportion in discharge of their rend but  from that period the appellant father refuse to make the respondent such  allowance and threaten to remove they from their possession if they do not  submit to the payment of the whole which at last oblige the respondent to  bring their action before the court of session against the appellant father to  recover payment of his part of the land tax so pay by they in the first place  for declare their immunity from pay his proportion of that tax for the future  and that they be the crown be irremovable tenant pen this suit the appellant  father bring a cross action for remove the respondent from their possession  and have it declare that they be removable at pleasure the respondent insist  they be the crown be irremovable tenant subject only to pay their rend to the  appellant accord to ancient usage that they have possess immemorially that  their right have be acknowledge by the several order from the crown above  recite and that their ancestor and purchaser from they have be from time to  time admit and enrol in the court book of the appellant and of those under who  right he claim the court of session decree that the appellant shall relieve  the respondent of his proportion of the land tax from the time his suit be  commence but absolve he from prior payment in regard the respondent have  voluntary submit to they and upon the question of right the lord by their  interlocutor that November find that the pursuer of the say declarator I e the  respondent plaintiff in the action of declaratory have such a right of  property to the land that they can not be remove and may dispone their right  to extraneous person against this interlocutor the appellant father prefer a  petition and the respondent put in answer the lord by their interlocutor that  December find that the pursuer of the declarator have such a right in the land  brown that they can be remove and may dispone their right to extraneous person  against which interlocutor the present appeal be bring but the respondent hope  c Talbot c areskine r dundas the same shall be affirm for these among other  reason saint for that the respondent and their ancestor have enjoy their  possession by this tenure of kind irremovable tenant of the crown time out of  mind and long before charter or feoff be in use in Scotland d for that their  right to possess their land without be remove have be constant acknowledge by  the crown d for that the respondent ancestor and purchaser from they have  always be admit and enrol in the court book of the manor without the least  objection to their title that for that on account of their be irremovable  tenant they have be rate to the land tax which can not have be do if they have  be ordinary movable tenant objection that all right of property in Scotland be  constitute either by charter feoff or lease at least by some title in write  whereas the respondent have no such title under which they can claim answer  here the appellant seem to mistake the point of law in the early time  proprietor of land have no title in write but their right be know and  ascertain by their possession and enrollments in the king court or in the  court of the other over lord and when the estate descend to a heir or be  transmit brown er p to a purchaser the title of the ancestor or author be  cognesced by a jury and the verdict of that jury give they a full right that  although since the feudal law be full adopt into the law of Scotland title  have general be constitute by write it afford no objection against the  respondent who right be more ancient than that period of the law of Scotland  and there yet remain other ancient right of the same kind such as the udal  right in orkney where there be no title in write but land be by possession  only transmit from father to son the title of the tenant or rentallers of the  bishopric of Glasgow of the monastery of Paisley and of those who hold under  the keeper of the king castle of Dumbarton and Stirling be of the same nature  till of late and several of the bishop tithe be hold and enjoy upon no other  foot to this day objection that the property of the land in question belong to  the Lord Maxwell and by his forfeiture do return to the crown be afterward  dissolve from the crown and grant to George earl of Dunbar who surrender the  same in favour of the earl of Annandale from who the appellant title proceed  answer it be deny that the land in question ever belong in property to Lord  Maxwell or that they come to the crown by his forfeiture they remain perpetual  with the crown brown as the crown be own property and the respondent ancestor  continue still the crown be kind irremovable tenant the heritable right of  keep the castle do indeed belong to Lord maxwell family and by his forfeiture  do return to the crown and be afterward grant to the earl of Annandale which  appear by the appellant own title particular by Lord maxwell service as heir  to his ancestor by which he be retour heritable keeper of the castle but not  proprietor of the land in question objection that the earl of Annandale the  appellant author obtain a decree of remove against some of the tenant in the  land in question year and another decree of the same kind year which be a  evidence that the tenant be not irremovable answer these decree be obtain in  absence and by default against some inhabitant of the town of Lochmaben the  nature of who right and possession be not know but against none of the  respondent ancestor and as these decree be obtain only in default they never  take any effect and they be part of the encroachment which give rise to the  several complaint make to the crown objection that the appellant father obtain  another decree of remove against several of the tenant year to which action  they appear by their counsel answer this appear to have be only a collusive  action bring by the viscount of stormont to turn the earl of Annandale out of  the possession of the rend for although at first there be a appearance of  argue for some of the tenant yet so soon as the earl of Annandale make himself  party to the suit the counsel who pretend to appear for the tenant withdraw  their appearance mid desire that judgement may be give as in default and  immediate after the viscount to quiet they grant a obligation to the tenant  never to remove they or their heir and so this decree take no further effect  and be now bar by prescription nor have any decree obtain in default the least  effect after party appear and plead upon their right as the respondent have  now do objection that by act of parliament Jas VI parliament can it be declare  that rentals set by the king of land belong to he in property except few  rentals send to they and their heir shall be of no further effect than a naked  liferent and that after the rentallers death the king may dispose of their  possession answer the act of parliament have no relation to this case it  concern rentals or write lease intend to be grant by the crown after that time  to rentallers without express heir these be declare to be only right for life  but the respondent tenor be much more ancient the right of the heir have be  acknowledge by the crown in the several deed aboverecited and particular by  the sign manual year brown and though the appellant pretend this sign manual  be stop in exchequer that do no way appear nor can it possible be true see  such sign brown er p manual be not a write of that nature which require its be  pass in exchequer but have its full effect by the king subscription that as  late as the year when a question arise between the appellant father and the  respondent concern their be subject to the land tax the appellant father  insist that they be irremovable tenant and ought to be tax on that account  whereby be direct acknowledge their right to be such as they now plead  objection that year the tenant obtain a order of parliament direct the  commissioner of the land tax to take off their assessment because they be only  tenant and if that order have have no effect the respondent have themselves to  blame answer the order be just notwithstanding of their be irremovable tenant  since it be not the tenant but the proprietor who be to pay the land tax  nevertheless that order have have no effect the tenant have still be assess  the appellant father insist they shall be assess and he prevail for by that  decree it be adjudge that they shall bear a proportion of the land tax accord  to the assessment make year the appellant state the follow case several  question arise in this cause below which be now reduce to this single point  videlicet whether the respondent tenant of the land in question and their next  of kin succeed they be irremovable by the appellant who be hereto of those  land and may assign their right to who they please king James the six upon the  attainder of John Lord Maxwell do by charter January grant to George earl of  Dunbar Lord home and his heir male the land of the four town of Smallhome  Heightae Heck and Greenhill and other land in Lochmaben and the hereditary  custody of the castle of Lochmaben and the office of steward of Annandale and  all the right title and interest which his majesty or his predecessor have or  may have to the say premise pay yearly the rend of pound S scot money and  mairts in name of feefarm together with all other rend and service due and  accustom for the same land and S for increase of rend and one red rise for the  office of steward of Annandale and keeper of the castle of Lochmaben if demand  in which charter it be mention that the say premise former belong to the say  Lord Maxwell or part of they be the annex property of the crown and be  dissolve by act of parliament a no to the intent his majesty may set the same  in feefarm and by the say barter the say premise be erect into a barony by the  name of the barony of Lochmaben these land descend from the earl of Dunbar to  home of slegden as his heir who resign the same to John Murray of rampatrick  afterward earl of Annandale whereupon brown by charter from king James the six  July the same premise be grant to the say earl of Annandale the say earl in  obtain a decree in absence before the lord of council and session against the  tenant of the say four town to remove they from their possession the earl of  Annandale upon his own resignation July obtain a charter from king Charles the  first of the same premise among other thing pay yearly the rend of pound scot  and mairts in name of feefarm deduct pound S d and the say mairts for his  yearly fee for keep the say castle of Lochmaben the say earl obtain another  decree march in absence before the lord of session against his tenant of these  land for remove they out of possession David viscount of stormont in have  marry the countess of Annandale who have her life rend in the say premise they  bring a action of removal against several of the tenant of these land who  insist that the viscount and his lady claim under the earl of Annandale who  have no right himself to the say land but only to the office of keeper of the  castle of Lochmaben they can only crave the accustom rend Payable army duty  and that the tenant then defender and their predecessor be ancient kind tenant  to the king and his royal predecessor king James the six by two warrant the  one date year and the other year discharge the keeper of the castle of  Lochmaben from trouble brown er p the say tenant or raise their rend so long  as they pay their accustom rend and that the same be also ratify by his then  present majesty king Charles the second by a signature date that June and that  the say defender have make a new address to his then majesty which be refer to  his majesty advocate in Scotland to the end he may consider their pretention  and if he find they just and that his majesty be concern therein that then he  shall appear for they and therefore the defendant crave the concurrence of his  majesty advocate to which it be answer for the say viscount and his lady that  the say warrant in and only restrain the then keeper of the castle of  Lochmaben from raise the then tenant rend or remove they but do not affect the  viscount and his lady who hold the land in question under a grant from the  crown subsequent to the say two warrant and antecedent to the last mention  warrant which can have no effect because the crown be then divest of the say  land after which his majesty advocate appear for his majesty interest and it  be order by the lord of session that he shall see the process and be ready to  dispute at the next call and the say action be call again in presence of the  lord the that July the defendant procurator declare I that they pass from  their appearance and defence and brown protest that they may be mark absent  and as if they have never appear and make any defence whereupon the lord of  session decree the defendant and their undertenants to remove themselves and  their good and cattle from the say land to the effect the say pursuer and  other in their name may enter and peaceable enjoy the same as the say  viscountesss own proper life rend land the defendant in this suit give up all  their pretention of be irremovable tenant to the crown and suffer judgement to  pass against they by default upon a agreement make with Lord stormont in  pursuance of which his lordship day afterward videlicet August give they a  write under his hand set forth that notwithstanding a decree of remove obtain  at his instance before the say lord of session against the tenant of Heightae  and other yet he for himself his heir and successor declare and promise that  during his lady right of life rend or the right of property to the say land he  will noway remove the say tenant and possessor of the say land nor their near  of kin succeed to they from their possession nor heighten their rend they  always pay their rend nail and duty they have be in use to pay in the year and  the say Lord stormont obtain a charter August from king Charles the second  contain a novodamus of the say land and office in the same term and under the  same feu duty as be mention and reserve in the charter to the earl of  Annandale year the say Lord stormont soon after die and his son and heir David  Lord stormont the appellant father then a infant succeed to he in the tenant  bring a action against the appellant father set forth that they be kind tenant  of the land in question to his majesty and his predecessor by a long tract of  possession pass memory of man for payment of service to his majesty castle of  Lochmaben and the decease viscount and viscountess of stormont pretend right  to the say land bring a action against the say tenant for remove they from  their possession and that the say tenant appear and debate for their interest  it be transact that for fortify the say viscount right he shall have his  decree of remove and the tenant shall retain their possession and that accord  the say viscount give the declaration in write under his hand date August  before mention and that by virtue of the say declaration the say tenant and  their successor have good and undoubted right to possess the say land for  payment of the accustom duty and noway to be remove from their possession nor  heighten in their rend or payment of tax more than the rest of the say  viscount tenant and the lord of session decree accord brown in the year when  there be a dispute between the appellant father and the tenant about pay the  public tax they again plead the right give they by this declaration and that  make they pay the tax be contrary to the term of it the respondent have bring  a action before the lord d session on behalf brown er p of themselves and the  rest of the tenant of the say four town against the appellant father to have  it find and declare that the be his majesty kind and irremovable tenant and  several other conclusion consequent thereupon the say viscount bring his cross  action of remove and declarator to the end they may be decree to remove from  their several possession or that it may be declare that they be removable  tenant and the say cause come to be hear the lord by their interlocutor  November find the tenant pursuer of the first declarator have such a right of  property to the land of the four town of Lochmaben that they can must be  remove and that they may dispone their right to extraneous person against this  interlocutor the appellant father present a reclaim petition and answer be  give in thereto by the respondent the lord by another interlocutor December  find that the tenant pursuer have such a right to the land that they can not  be remove and may dispone their right to extraneous person against these two  interlocutor the appellant father bring his appeal the last session of  parliament and since his death the same have be revive by the appellant his  old son and heir who humble conceive and be advice he be aggrieve thereby the  respondent insist p York d Forbes that they and their predecessor be ancient  kind by tenant of the crown and have hold their possession time immemorial  without any write title and can not be remove nor heighten in their rend any  more than copyholder in England and that they have power to assign this tenant  right as they please and to support this pretence they produce a petition to  king James the first from his poor tenant of these land complain that  notwithstanding their be his majesty kind tenant they be extortioned by the  constable of the castle upon which follow a order sign by the king date that  June whereby his majesty ordain the keeper of the castle of Lochmaben to  desist from molest the complainer but to suffer they to occupy their room and  possession without further trouble or impediment and another warrant date set  forth that his majesty understanding that his poor tenant of the say four town  be oppress by the keeper of the castle of Lochmaben and compel to pay duty and  do service which they and their predecessor be never in use to pay or do  wherefore his majesty brown command the keeper present and to come that they  in no way burden or charge his say tenant and inhabitant of the say four town  and land to pay duty or service further than they and their predecessor be in  use to pay and do in time pass and also another warrant of king Charles two  date that January set forth that his majesty understanding the kind tenant of  the say four town have be exorbitant raise in their rend and service contrary  to the express warrant of his majesty royal grandfather therefore his majesty  declare that the say tenant shall have be protect and the say warrant obey as  constant lease and thereby renew the say warrant and lease and authorize the  say tenant and their successor to possess and enjoy their respective land they  pay and perform yearly their rend and service pay by their ancestor year and  prohibit the keeper of the castle of Lochmaben or any who shall pretend right  to the say crown land in all time come to exact more rend or service from the  tenant thereof than they be in use to pay the time of the say warrant nor  remove they from their ancient possession so long as they shall thankful  perform the same and further insist upon the right give they by the  declaration of the appellant grandfather that August to which the appellant  answer that if the respondent predecessor have be ancient kind tenant of the  crown that will not give they a right of be irremovable by the grantee of the  crown much less of assign their right of kind tenancy for such a right will  contradict a fundamental principle of law which say there can be no perpetual  assignable estate in land without feoff no one seizina no one land and neither  the law of copyhold in England nor any thing similar to it take place in  Scotland and though kind tenant who have long enjoy from father to son be well  know in Scotland yet it never be adjudge it never be say by any writer upon  the law of Scotland that such tenant by the brown er p continuance of this  favour acquire a absolute right against the heritor of the land and it be a  establish rule that kind tenant can assign because the only title they have to  the lord favour be their be kindred to the ancient possessor which be  inconsistent with the notion of the power of assign and as to the two warrant  of king James VI year and they neither give a new right nor confirm any old  one and amount to no more than of command to the constable of the castle of  Lochniaben not to oppress the tenant the warrant from king Charles h order the  two former warrant to be observe as lease be obtain upon a misrepresentation  for the crown have then no right to the land and for that reason when the  warrant be bring to the exchequer it be stop and never pass the seal but  suppose these warrant amount to lease yet undoubted they give no power brown  to assign and by no law no lease be assignable unless they contain a power of  assign in formal word the appellant admit the declaration give by his ancestor  in the year and that by virtue thereof the possessor at that time and their  next of kin succeed to they have a right to enjoy accord to the term of it but  the right give by this declaration be express confine to their kin succeed and  give no power to assign this declaration be the respondent only title for  their allegation of have hold of the crown by immemorial favour can be prove  because it be contradict by the three decree in and and if it be prove yet it  never be allow in Scotland to give a irremovable right and though it give a  right in the ample manner it be extinguish for ever by their acceptance of the  write title from the appellant grandfather in the year which be evident give  they because they consent to let a decree go against they as his movable  tenant in the year they find upon this declaration as their title and obtain a  decree that they have a right to enjoy their land in pursuance thereof by  these interlocutor the respondent be establish in a right which have no name  nor any foundation in law and be incompatible with the right establish in the  appellant and his ancestor by charter and feoff by virtue whereof they have be  in possession of the land in question above year nor do the interlocutor  ascertain upon which of the respondent pretention the court find the right  decree to they but the interlocutor complain of be affirm