LESLIE v The EARL of MORAY (Court of Session)

The right of property in these lands passed through several hands; and, in the repeated renewals of the investiture, reference is always made to the original feu-contract.

Thus, every charter and precept of clare constat contained the following clause, ‘And performing and fulfilling to me and my foresaids, the haill remanent heads, obligements, articles, clauses, and conditions mentioned in the original contract of feu of the said lands, made and passed,’ &c.

It was not disputed that the feu-duty of 24 bolls of bear had been regularly paid by the Morayshire measure; and it was admitted that, for 40 years at least, there had been no attempt to enforce the obligation of relief from public burdens, as contained in the feu-contract; and there was no evidence that it had ever been acted upon.

III. The over payments of feu-duty having been made by mistake, the claim for repetition necessarily follows. The defence of bona fides is not applicable to such a case; and, at all events, the defender cannot be allowed to defend himself upon an assumption inconsistent with the plain terms of his own title; vide Mackenzie's Observations on Statutes , pp. 121, 259; Thomson's edit. of the Statutes , vol. v. p. 425; Mackenzie's Inst. B. iii. tit. 1; Wallace's Prin. B. vii. tit. 8, § 51; Carrick v. Carse, 5th August 1778, Mor. p. 2931.

But in aid of the legal presumption and real evidence of intention, there is the conclusive fact, that, while the stipulated feu-duty has been always paid, the obligation of relief has never been acted upon for a period of 170 years, during which the investiture has been many times renewed in favour both of heirs and purchasers.