Scottish Court of Session Decisions

Subject_1 BASTARD.
Subject_2 SECT. VII.

How far a Donatary of Bastardy is liable for the debts of the Bastard. How a Debt against the Estate of a Bastard may be Constituted. Do Tacks pass to the Donatary?

James Falconer
v.
Alexander Hay

Date: 29 July 1789
Case No. No 16.

A tack granted to a bastard, excluding his assignees and subtenants, does not pass to the Crown's donatar.

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James Falconer having let out part of his lands to a person born out of wedlock, ‘excluding his assignees and subtenants;’ the question occurred, after the death of the lessee without children, Whether the tack could be assigned by the king to a donatar?

For trying this question, James Falconer brought an action of removing against Alexander Hay, who had been appointed by the Barons of Exchequer to manage the affairs of the deceased till a donatar should be named. The pursuer

Pleaded: A tack granted without mention of assignees or subtenants, must cease on the death of the tacksman, if he leave no heirs. A lease, therefore, granted to one born out of wedlock, on his dying without children, must be at an end; the right of the Crown in the effects of such a person being of the nature of an escheat, and not arising from any title of succession. Indeed, even although the King were in this case to be considered as an heir, the same consequence would follow, as he cannot, in his own person, fulfil the obligations exigible by the landlord; while, from the exclusive nature of leases, which, in the present instance, is fortified by an express stipulation, it is equally out of his power to assign his right to another; l. 1. 4. C. De bon Caduc.; Craig, lib. 1. dieg. 16. § 30.; Skene, De verb signif. voce Bastard; Balfour, voce Bastard, § 2.; Sir James Steuart, ibid; Stair, b. 3. tit. 3. § 44. 47.; book 4. tit 13. § 1.; Bankt. b. 3. tit 3. § 99.; Dict. voce Personal and Transmissible; 25th January 1788. Alison contra Proudfoot and Litster, Fac. Col. No 17. p. 29. voce Tack.

Answered: Where effects are without an owner, either because they have never been appropriated by any person, or because the former proprietor has derelinquished them, they are said to belong to the Crown, as bona vacantia or caduca. But where this happens in consequence of the demise of the owner without lawful heirs, the King is properly said to take the effects as ultimus hæres, his royal prerogative, as the pater patriæ, rendering him the rightful successor to such of his subjects as have no other. All this, however, seems to be of little importance. Whatever is capable of transmission to heirs, is understood, in circumstances such as here occur, to be transmitted to the Crown; and the restrictions which formerly precluded the free power of disposal, are no longer of any avail; it being an established rule, as the King cannot act in a subordinate capacity, that, when in consequence of forfeiture, escheat, or otherwise, he comes into the right of an estate holding of one of his subjects, he may transfer it to a donatary, although the former owner had no such power. Thus, before the late statute abolished wardholding, the King could transfer a ward fee holding of a subject, without any danger of recognition; and at present his donatary is authorised to demand a renewal of the investiture, without any obligation to pay a year's rent to the superior, which every other singular successor must do.

The Court seemed to be of opinion, that even where no mention has been made of assignees and subtenants, the King coming in the place of the tacksman ob defectum hæredis, could not transfer the right to a donatar ; and, therefore, after advising memorials for the parties,

‘The Lords decerned in the removing.’

Lord Reporter, Rockville. Act. Elphinston. Alt. Wight. Clerk, Gordon. Fol. Dic. v. 3. p. 69. Fac. Col. No 84. p. 151.