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Lord Justice-General.-I agree with the Lord Ordinary, and I do not see that we can dissent from his opinion without overthrowing the authority of the case of Nasmyth. In that case, it was held that the act had not fallen into desuetude, although the rarity of the question had made it a matter of curiosity rather than otherwise. The next of kin here try to overcome the authority of that case by quoting the opinions of English judges. I have no wish to interfere with them, or to question their authority within their own province; but I am not to be influenced by them against the views, so clearly expressed, of all our own institutional writers and judges.

Lord Mackenzie.- I do not exactly recollect the view that was taken of the statute in Nasmyth's case; but, whatever that view was, it is clear that the executor had no right at all, if the statute was in desuetude. On the general point, therefore, I think the decision in Nasmyth a good decision of this Court; it never went to the House of Lords; this point was never before them. Then we come to the special question as to the effect of these legacies. Now, in the case of Nasmyth, it is plain that the legacies were given to the executors as executors. Therefore, that was a decision on this point also. I cannot see, and am satisfied there is no ground for, any such distinction as is attempted to be made between that case and the present. It is said that a legacy to an executor implies a limitation of his right to that sum. I don't see any ground for any such limitation in the law of Scotland. The law gives the executor one right, and the testator gives him another; but he does not exclude the legal right; on the contrary, the testator, but for the special provision of the act, must have been held as giving something over and above the legal right. I think, then, the act applies, and that, whether we look on this third as a part of the old common law right of executors which they are allowed to retain, or as a gratification for their trouble in administering the executry. It is said that a distinction of this kind has been taken in England; but I do not see that we can go on that. The law of England, till the late statute was passed, gave the whole residue to the executor; and the judges, on grounds of equity, did all they could to defeat this law on all sorts of pretexts. But, in Scotland, there was no such necessity, and no such practice, for the legislature long ago remedied the evil. Since, then, our law is so different from that of England, I do not see that we can adopt a rule of the English law, adopted there merely to remedy a defect which their legislature had not corrected, but which ours had.

Lord Fullerton.-I am of the same opinion. The case of Nasmyth decided that the act 1617 is not in desuetude; and if that statute is still in observance, the only question is, what is the interpretation of it. After all that has been said as to legacies

being left to executors, I see no difficulty, because the statute has expressly provided for that case-(reads statute). On the whole, therefore, I have no doubt whatever.

Lord Jeffrey.-I am of the same opinion-though, after what your Lordships have said, I scarcely think it worth while to go into the grounds of that opinion. It is now a question of construction of the statute-since, that the statute is still in observantia is not denied. The reason why the plea of desuetude was maintained for the next of kin in Nasmyth's case was, that the plea, which raised a doubt as to the right of the executors to a third, would have applied multo magis to the old rule, which the legislature had swept away with concurrence of all parties. I think it plain enough that the statute had two distinct objects; first to abrogate that erroneous view of the law by which it had been held that constituting executors was constituting residuary legatees; and then to enact, that they should hold count and reckoning with the next of kin, and keep one-third of the residue to themselves. Now this is not, in any degree, a reservation of the old abuse, but a new provision made that the executors should be paid for their services by a certain commission, secundum valorem of the money passing through their hands. This is a method of payment to which there are many parallels in our law-as, for instance, the case of trustees in bankruptcy, and bankers in many of their charges for commission. The Lord Advocate's notion, therefore, that the executors in Nasmyth's case had an interest rather to maintain than to deny that the act was in desuetude, proceeds on a palpable fallacy. If the act had been purely a repealing or abrogating act, it would no doubt have been so; as the effect of finding it in desuetude would have been merely to revive and give effect to the old law it professed to annul. But if it was purely a repealing act, then it could only be put in desuetude by proving that the old law had, notwithstanding, continued to be exclusively observed: But the fact was notoriously otherwise; and, therefore, the executors, admitting that, in so far as it had abrogated the old law, it was in full and unquestioned observance, denied that it had fallen into desuetude as an enactment for the first time vesting the executors with a right to one-third of the free funds-which was the only matter in dispute. But then it is argued, that the bequest of legacies to the executors implied a restriction of their right to the amount of these legacies. But, to make such a restriction effectual, it must be express. As to the case of Nasmyth, apart from the matter of desuetude, I think it is a case a fortiori to the present. In this case, there is only a reservation of the power to name residuary legatees-and none are appointed; whilst, there, a residuary legatee had actually been named; and this fiduciary character being thus stamped on the nomination at the time it was made, afforded a strong inference against

claim should not exceed one-third of a third of the executry. The defenders content themselves with appealing to the words of the statute, and the authority of Stair, Bankton, Erskine, and Mackenzie, as showing that the act is not in desuetude, and the general rule of law as to the defunct's part of moveables when a testator leaves no wife or children.

"Lord Justice-Clerk.-Considering the nature of this question, I can have no doubt that the interlocutor should be adhered to. The question is not one in which appeals are to be made to the feelings of generosity of the defenders, or as to what every person standing in their situation would be disposed to do, but what are their legal rights as the executors-nominate under Dr. James Nasmyth's will. Their rights are clearly defined by the act 1617, c. 14; and the clear and undoubted rules of law, as stated by Lord Stair in the paragraph immediately preceding that referred to in the answers, that when a person dies leaving neither wife nor children, the dead's part is the whole' executry, and that a lapsed legacy must, in such a case, be held pro non scripto. Is the act in question, then, to be held as in desuetude, or making no part of our law as to the rights of executors-nominate? This seems to be rested on the single ground, that no claim has for many years been made under it. But as every institutional writer holds the act as authoritative and binding, it is impossible for us to pronounce it is in desuetude, or abrogated, in the absence of any decision tending to call its true enactments in question. Now, looking to Stair, 3. 8. 53; Mackenzie, 3. 9. 11; Bankton, 3. 8. 4; and Erskine, 3. 9. 26-I can entertain no doubt that this statute does now make a part of the law of Scotland, and must regulate every question, in this department, in which it is appealed to. The Lord Ordinary has correctly applied its bearings to the circumstances of this case, and I have nothing to add in regard to his findings.

"Lord Robertson.-A good deal has been said of intention; but this is not a question of intention, but of rights, by law, of executors. The act 1617 limits the right of executors to a third of the dead's part. By the common law, the dead's part may be a half, third, or the whole. This was in the view of the legislature, and yet a third of the dead's part was provided to the executor-nominate. Had Mary Nasmyth survived, there would have been no claim. But, as it is, and leaving no wife or children, the dead's part is the whole. We must go on the express terms of the statute.

“Lord Craigie.-I think the interlocutor is right in all its parts. Whenever the act can be applied, we must presume it is intended. "Lord Bannatyne.-We have nothing to do with intention; but, under the act, the executors have a title to a third of whatever the dead's part is unless excluded by legacies; and as Miss Nasmyth died, the whole is dead's part.

“Lord Glenlee.-There can be no possible doubt as to the interlocutor being right. The nearest of kin claim the dead's part, and the executor is entitled to one-third, deducting his own legacy. As to the statute being in desuetude, it is out of the question; because few cases have occurred, it is because the act is held to be in force, so few cases occur without a residuary legacy being provided; and here it lapsed.

"Unanimously adhere."

the executors. Then the legacies, I think, were bequeathed to the executors as such, and in the same instrument which nominated them. That instrument must all be read together: And if in one clause you find legacies left to A B, and in another he is named executor, I see no difference, whether this is done in different deeds or different clauses of the same deed, from an express bequest to them as executors. The natural reading of the act is to save all rights which they may have as executors, but to restrict them to one-third. On the whole, I own that, after the case of Nasmyth, it appears to me that this is a case which does not admit of any difficulty; and I cannot say that I ever had any great difficulty with regard to it. It is a point of law which is rather antiquated, no doubt; but that decision has revived it.

The Court adhered.

Lord Ordinary, Murray.-For Executors, Marshall, Patton i Walker and Melville, W S. Agents.- For Next of Kin, Lord Advocate (Rutherfurd), More; Alexander Hutchison, S.S.C. Agent.-L. Clerk.--| W.G.T.]

29th November 1849.

SECOND DIVISION.

No. 29. THE EARL OF FIFE'S TRUSTEES, Pursuers, v. SIR JOHN GORDON SINCLAIR, and JAMES SINCLAIR of Forss, Defenders.

Superior and Vassal-Title to Exclude-Possession-Prescription-In a competition for a superiority, both parties produced ex facie regular titles to the lands. The pursuer's title being held to be alone feudally complete, and being followed by enrolment on the roll of freeholders for upwards of sixty years-Held that the defender's possession, by the grant of a charter to the vassal, under which he had received feu-duties for upwards of forty years, did not render his title sufficient in law to exclude the pursuer's right. This was a competition between the pursuers and Sir John Gordon Sinclair for the superiority of the lands of Milltown and Mill of Leurarie in Caithnessshire, of which the dominium utile was vested in the defender Sinclair of Forss.

The summons set forth the titles under which the superiority was claimed by the pursuers; it then called for production of the titles in virtue of which it was claimed by the defender Sir John Gordon Sinclair. The conclusion was for reduction of the latter titles, and for declarator to the effect that the superiority in question was vested in them, in respect of their titles, and of their possession.

Sir John Gordon Sinclair pleaded in limine, that the pursuers had no title to demand exhibition of the writs called for, and that his own titles and possession were sufficient to exclude the title of the pursuers.

:

The defender Sinclair of Forss pleaded, that the action ought to be dismissed so far as directed against him, in respect he claimed the dominium utile, but not the superiority-to ascertain which he had convened both competitors in a prior process of multiplepoinding. The title set forth by the pursuers was as follows:In 1691, Lord Breadalbane entered into a contract, whereby he conveyed the lands of Milltown and Mill of Leurarie to Sinclair of Brims, to be held de se. Sinclair of Brims had two sons-Sinclair of Ulbster, and Patrick Sinclair. In an arbitration between the brothers, decree was pronounced ordaining Sinclair of Ulbster, who had been served heir of his father, and, as such, was entitled to the dominium utile of the lands in question-to convey it to his younger brother Patrick Sinclair. Before the date of the decree-arbitral, Sinclair of Ulbster had purchased and obtained a conveyance

of the superiority from Lord Breadalbane. This conveyance was dated 28th March 1719; and thus, at that date, the elder brother was superior, and the younger was vassal, in the lands in question. The conveyance by the former to the latter of the right of property, contained an express reservation of the right of superiority.

On the death of the elder brother Sinclair of Ulbster, his son George, as his heir, disponed the superiority to Alexander Brodie of Brodie, who expede a crowncharter upon this conveyance in 1740, on which he was infeft the same year. The superiority had remained on a personal title in Sinclair of Ulbster, and his son George.

After various steps, which it is unnecessary to specify, there was a disposition of this superiority from James Brodie of Brodie in favour of the Earl of Fife, dated in 1775, and delivered in 1777. This disposition conveyed a precept in a crown-charter. Lord Fife conveyed the liferent of the superiority to his brother, Sir James Duff, in liferent. Titles were made up by both brothers, under the crown-charter, to the liferent and the fee, upon which they were both enrolled as freeholders for the county of Caithness in 1780. On this title Lord Fife voted till he became a British Peer in 1827, and Sir James Duff till his death in 1839.

The title of the pursuers, as trustees, to the superiority in question, stood upon Lord Fife's trust-disposition and settlement, followed by charter of resignation and infeftment.

The defender Sir John Gordon Sinelair's title stood as follows:

In the conveyance by Sinclair of Ulbster to his younger brother Patrick Sinclair, were included the lands of Forsie, to which Sinclair of Brims, their father, had right under the feu-contract entered into by him with Lord Breadalbane. On this conveyance Patrick Sinclair expede a crown-charter in 1726, which did not include the lands of Milltown and Mill of Leurarie.

The same year, Patrick Sinclair conveyed to John Sinclair of Murkle, afterwards Lord Murkle, a senator of the College of Justice, all the lands previously conveyed to himself by his brother, Sinclair of Ulbster. This conveyance to Lord Murkle comprehended the lands of Milltown and Mill of Leurarie; it also contained an assignation to Patrick's crown-charter. On this crown-charter Lord Murkle was infeft in 1726. "His sasine recited the charter, which, as already said, contained no mention of the lands in question; it also recited the conveyance by Patrick Sinclair, containing the property of the Milltown, Mill of Leurarie, &c. Although no warrant, therefore, was given to infeft in the superiority of these lands, this instrument of sasine bore, that infeftment was given

"totarum et integrarum prædict. ville et terrarum de Forsie alias Forsiekivor, Achahater, villæ molendinaria de Leurarie, et molendini ejusdem terrarum molendinariarum."

Lord Murkle conveyed to his brother, Francis Sinclair, the lands of Forsie, to be held for payment of a feu-duty, and the Milltown and Mill of Leurarie, to be held a se vel de se.

On Lord Murkle's death, his eldest brother, Lord Caithness, was served heir to him. The retour stated, that the deceased died infeft and seised

"in totis et integris villæ et terris de Forsie alias Forsiekivor,

comprehenden. Achahater et villam molendinariam de Leurarie et molendinum ejusdem."

A precept followed on the retour, and in the same terms. On this precept Lord Caithness was infeft; and, in subsequent titles, the lands of Forsie were, as in the above retour, described as comprehending Milltown and Mill of Leurarie.

In 1761, Lord Caithness executed an entail in favour of himself and a series of heirs. The entail conveyed the lands contained in the entailer's service as heir to Lord Murkle. The defender, Sir J. G. Sinclair, claimed the superiority in dispute as heir under this investiture.

In 1762, Francis Sinclair, to whom Lord Murkle had conveyed the property of Forsie, as well as that of Milltown and Mill of Leurarie, left a settlement in favour of the heirs-male of his marriage; whom failing, in favour of Lord Caithness and his heirs male; whom failing, to the Earl's heirs-female. As there was no heirmale of the marriage, Lord Caithness became entitled to take the lands conveyed by his settlement, but made up no title to them.

At this period, therefore, the position of the Milltown and Mill of Leurarie was as follows:-The superiority was in Brodie of Brodie; the property was in hæreditate jacente of Francis Sinclair, and was liable to be taken up under his settlement by Lord Caithness; and there was a mid-superiority, carried by the service of Lord Caithness to Lord Murkle.

According to the defenders' views, there was no superiority in Brodie of Brodie; but that right, and not a mid-superiority, was vested in Lord Caithness by the service just mentioned.

In 1766, a competition arose between Sir John Sinclair, the grandfather of the principal defender, and the daughter and heir-female of Lord Caithness, Dorothea Countess of Fife, as to which of these parties was entitled to take whatever was conveyed by the entail of 1761. Sir John Sinclair was preferred in this competition-which, according to the defenders' view, was limited to the superiority alone.

In consequence of Lord Caithness' failure to make up a title to the property of Milltown and Mill of Leurarie, under his brother's settlement, a question arose whether it was carried by the entail of 1761. His daughter, the Countess of Fife, holding that the destination to heirsfemale, in her uncle Francis Sinclair's settlement, had not been evacuated by the entail, made up titles as heir of provision to him, and sold the lands to General Scott, by whom they were again sold to Captain Dunbar. On the other hand, Sir John Sinclair, as substitute under the entail, raised an action of reduction-improbation of the Countess's right, and of the rights which had flowed from it.

Brodie of Brodie was not made a party to this action, which was raised in 1775, nor to the previous action of 1766. Lord Fife was called; but it was disputed whether his appearance was for his own personal interest, or merely as the husband of the Countess. The defenders obtained absolvitor.

This action also contained an alternative conclusion of declarator of non-entry against the Earl and Countess of Fife, who allowed the pursuer to obtain in this branch of the action a decree by default, bearing that

"all and whole the town and lands of Forsie, Achahater, and

the Milltown of Leurarie, and mill thereof, with the mill-lands, astricted multures, sequels, bannock, knaveship, and good will thereof.... do now hold of the pursuer, Sir John Gordon Sinclair of Murkle, Baronet, as immediate lawful superior thereof, for payment of the feu and blench-duties contained in the original investitures thereof, and that the same have been in the hands of the said Sir John Gordon Sinclair, Baronet, and his predecessors, ever since the decease of the said Captain Thomas Dunbar, the last vassal who died infeft and seised therein, in consequence whereof the said Sir John Gordon Sinclair has right to the rents, maills, and duties thereof, from and since that period, and decerned and declared, and hereby decern and declare, for payment accordingly."

Captain Dunbar's title to the property of the Milltown and Mill of Leurarie having thus been maintained, all objection was removed to their being included in a ranking and sale of his estates which had previously been brought.

Sinclair of Forss, the ancestor of the present defender, purchased the lands at the judicial sale in this process. The charter of sale was granted, in 1801, by the tutors of the principal defender, Sir John Gordon Sinclair.

In the present process, the property of the lands was not in question, but was admitted on all hands to be vested in Sinclair of Forss.

Such being the state of the titles, the possession averred by the pursuers was the enrolment of Lord Fife and his brother Sir James Duff, upon the roll of freeholders for the county of Caithness, and the subsistence of that enrolment for upwards of fifty years. The possession of the defenders was averred in respect of the charter of sale of 1801, the litigations which preceded that charter, and the levying of feu-duties which fol lowed it, until the institution of the present challenge.

A previous action at the instance of the pursuers against the same defenders had been thrown out on certain objections, in point of form, to the structure of the summons (Vide supra, vol. xvi. p. 517).

The Lord Ordinary pronounced the following interlocutor:

"18th March 1848.-The Lord Ordinary having heard counsel in this action, and thereafter considered the record, title-deeds, and writs produced, and whole process, finds that the title of the defender, Sir John Gordon Sinclair, and his predecessors, to the subjects libelled on, having been expede under the authority of decrees of this Court, and being otherwise fortified by prescription, is sufficient to exclude the title of the pursuers: Finds farther, that the defender, Mr. Sinclair of Forss, having held under the other defender, Sir John Sinclair, for above forty years, without any competent challenge prior to the present ac tion, cannot now be disturbed in his title or possession: Therefore, repels the reasons of reduction, sustains the 3d and 4th defences urged for Sir John Gordon Sinclair, and sustains the four first defences urged for Mr. Sinclair of Forss, and decerns i Finds the defenders entitled to expenses, as the same shall be taxed by the auditor, and decerns.

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Note. The present action has been brought by the pursuers for the purpose of vindicating their right, as representing the late Lord Fife, to the superiority of the lands of Leurarie and Milltown, and mill thereof, in the county of Caithness. The same question was tried in 1848-44 in an action before the same Ordinary, who sustained the pleas of the defenders both against the form of the summons and on the merits; but on a reclaiming note, the Second Division limited their adherence to the objection to the summons only, of course leaving it to the pursuers to bring a new action in competent shape, if so advised.

"The same claim has been again brought forward on a new summons, free from any objection in point of form; and the Lord Ordinary has felt himself constrained to repeat the prefixed judgment on the merits to the same effect as that previously pronounced. Referring to the note annexed to the former inter locutor in 1844, a short additional explanation will now suffice.

"The lands of which the superiority is now in dispute (Leurarie, Milltown, mill, and mill-lands) formed parts of the old Caithness estate, which, it is well known, were once alienated to the Breadalbane family. It is said that both parties in this question derived such right as they have from the Earl of Breadalbane, in possession from 1691 till 1719.

"With reference to the superiority of the lands in dispute in the pursuers' history of the title, it is stated generally that the whole lands, both superiority and property, were conveyed by Lord Breadalbane to John Sinclair of Ulbster in 1719; that from him these subjects descended to his eldest son, George Sinclair of Ulbster; that the superiority remaining with him, he sold it in 1739 to Alexander Brodie of Brodie, who was infeft on a crowncharter in 1740; and that Brodie was succeeded by Mrs. M'Leod, his sister, who made up a title under the crown; that she sold to James Brodie, who disposed of it in 1773 to the late Earl of Fife, whose trustees are pursuers of the present action.

"The defenders again allege that the superiority of these lands now belongs to them on the following title. They set forth, with reference to the pursuers' averment, that Leurarie and Milltown were conveyed in 1691 by Lord Breadalbane to Sinclair of Brims, with a holding de se only; that no such deed is produced, and the base conveyance is not admitted. Brims (who afterwards purchased the whole lordship of Caithness from Lord Breadalbane) was the father of John Sinclair of Ulbster; and, in consequence of a decree-arbitral of James Graham of Airth, advocate, John Sinclair of Ulbster was found obliged to convey Leurarie and Milltown to his second brother, Patrick. In 1726 Patrick conveyed the lands in question to John Sinclair, afterwards Lord Murkle, who, it is said, was erroneously infeft as a crown vassal without warrant either in charter or precept. That infeftment, however, was not challenged at the time, nor for more than a century and a-half afterwards, when it was included in the reductory conclusions of the present action.

"On Lord Murkle's death, about 1755, his brother Alexander, Lord Caithness, was served heir to him in the lands of Forsie, comprehending "villam molendinariam de Leurarie et molendinum ejusdem." The Earl executed an entail in 1761 of his whole lands, calling the defenders' predecessor as a leading member of destination; and, on a competition (which was held to apply to the superiority only) between Earl Alexander's heir of entail, Sir J. G. Sinclair (the defender's predecessor), and his heir of line (Lady Fife), it was found by this Court in 1766, and by the House of Lords in 1767, that Sir John, as heir of entail, was entitled to the estate in dispute.-(See Mor. p. 14,944.)

"Sir John Sinclair, in 1768, expede a crown-charter comprehending the superiority of these lands. His son Sir Robert served heir to him, and was infeft on a precept from Chancery in 1789; and a similar title was made up in 1797 in favour of the present defender, Sir John Gordon Sinclair, on his father's death; so that there have been continuous titles in the person of the defender and his predecessors to this superiority for nearly eighty years anterior to the present action. The possession under that title shall be immediately adverted to.

"In the meantime, it may be right to state, that the property of the lands in question was afterwards (in 1796) found not to be included along with the superiority, in the entail, executed as before explained by Alexander Earl of Caithness in 1761, and therefore the property descended to Lady Fife, the daughter and heiress of line of the Earl. She sold it with consent of her husband, Lord Fife, to General Scott, who afterwards disposed of it to Captain Dunbar of Westfield; and it was purchased by Mr. Sinclair of Forss, the predecessor of one of the defenders, in the ranking of Dunbar's creditors, it is believed, prior to 1800. There is now no dispute as to the title to the property.

"In this state of the title-deeds, the grounds on which the Lord Ordinary has held the title of the defender to exclude the pursuers from the superiority in question will be readily understood from a few notes on the progress.

"1st. There seems to be no doubt that both parties have a good title to the subject, in so far as mere parchment goes. Each of them have charters from the crown, and sasines, specially comprehending the subjects, which, if clothed with possession, would be sufficient to constitute a valid feudal right. But there seems to be nothing to establish any possession by the pursuer and his predecessors of this superiority for nearly twice the period of the long prescription.

"Upon this point, the sole plea of the pursuer seems to be founded on this, that Lord Fife's relative, Sir James Duff, as

his disponee in liferent, and his Lordship himself as fiar, were enrolled on the roll of freeholders for Caithness-shire, and continued on that roll for above fifty years, on their title before specified. But the entry of a claimant on that roll is not possession, but only one of the rights flowing from possession; and, in fact, possession in such cases, of a different kind, testable by the trust-oath, is notoriously necessary, to authorize a claimant either to be enrolled, or to continue on the roll of freeholders. In that view, it is manifest that neither Lord Fife nor Sir James Duff could (if properly advised) have taken the trust-oath on their enrolment, because they had no legal possession; the vassals held another, under whom they had been decerned to hold by decrees both of this Court and of the House of Lords, in 1766 and 1767, subsequently repeated by this Court in 1796, which stood unchallenged in any competent form for above forty years. Farther, the reason assigned for no objection being stated against the enrolment appears to be true and satisfactory. The valuation on which Sir James Duff was enrolled was above £500, while the valuation of Leurarie and Milltown was little above £30, leaving a surplus of unexceptionable qualification, for above £400 Scots, to Sir James, so that any objection founded on his want of title to the small portion now in dispute would have availed nothing.

"2d. While the title of the defender, for a period far beyond the years of prescription, has been, as much as the pursuer's, unexceptionable in feudal form, the possession of the defender and his ancestor seems to be clear, exclusive, and unequivocal. In particular, (1.) The decrees of the Court of Session and House of Lords in 1766 and 1767 was decisive in favour of Sir John Gordon Sinclair, and it was pronounced in a question with Lady Fife, then the undoubted vassal in the lands. What more explicit act of possession of a superiority can take place than a decree against the proper vassal, preferring the claimant ? (2.) Another decree to the same effect was pronounced in 1796 in a subsequent action (raised in 1775), to which the vassal of that day (Dunbar of Westfield) was a party, as well as James Earl of Fife, and his wife, the preceding vassal; and, (3.) The charter granted by the defender's curators in 1801 to Mr. Sinclair of Forss, unchallenged in any competent action for forty-four years, was of itself a proof of possession, for the years of prescription, that must for ever validate their title.

3d. The objection of the pursuers to these acts of possession on the part of the defenders appears to be, in every view, irrelevant and untenable. It is said that Mr. Brodie, the owner of the competing right, was not cited to the process in 1766, and that his successor, Lord Fife, was not called, as in his own right, to the process that depended between 1775 and 1797. But was such citation necessary? Lord Fife and his predecessors were bound to look after their own vassals and casualties, whether cited by the defender's predecessor or not. If they lay by, and made no claim on the vassals for above sixty years, during which time another owner cited the vassals, and got two decrees against them, one affirmed in the House of Lords, and levied the duties and casualties, a stronger case cannot be figured for showing dereliction, or conscious want of right, in the one party, and active possession in the other-the two antagonist qualities on which the law of prescription is founded;-vigilantibus non dormientibus jura subveniunt.

"At the same time, it is an important feature in the present case, in equity as well as in law, that the pursuer's predecessor, Lord Fife, could not be ignorant of either of the judgments by which the right of the defender and his predecessors to this superiority was successively found and declared, as against the vassals. It is said he was called merely as a party for his interest, and not cited in respect of his own right as proprietor of Leurarie. But this is a technical objection entitled to no weight. The defender's predecessor was not bound to call him at all as a latent or silent competitor. But that sagacious nobleman, as administrator for his lady, had been engaged for many years in a suit about the superiority of Leurarie, carried even to the House of Lords in 1766, and when he soon afterwards bought (for what price does not appear) the very same superiority, from Brodie, on a different title from the defender's, he knew the worth of his right. He never attempted, however, to levy, or claim, any casualty, though he could not be ignorant of the vassal, the property having been sold recently before by his own wife, and himself as her curator, to General Scott. It is not alleged that his Lordship ever drew a farthing of the casualties.

"Farther, it deserves particular remark, that these decrees,

which were in foro, have not been sought to be reduced, either in the first, or in the last summons brought by the pursuers. If they were ever subject to any challenge, (which it is difficult to suppose), that is long ago excluded by prescription.

"Finally, in addition to the decrees just mentioned, the principal defender gave an entry by charter to the other defender's father, Mr. Sinclair, in 1801, and drew the casualties due from 1791. No challenge or reduction of that charter was brought by the pursuer till the summons in the present action was served in 1845, long after the elapse of the prescriptive term. The first summons, raised by the pursuers in 1841, cannot have this effect, as it was dismissed as irregularly framed, and not appropriate to the case. Besides, it did not specially call for the titles now sought to be reduced. The pursuers, therefore, can claim no benefit from the former incompetent action, as an available interruption to the currency of prescription on the defender's title."

The pursuers reclaimed.

Lord Justice-Clerk.-Whatever view is taken of this case, it becomes necessary that the grounds on which the opinions of the Court proceed should be very distinctly stated. It has unfortunately happened that the Lord Ordinary has proceeded on some mistakes as to matters of fact, on which his view of the case wholly depends. If these points were not cleared up, it might be thought that the Court had not attended to them, and had disregarded what appears to be conclusive. These I shall afterwards notice.

It must be admitted that the case is one of great nicety in some points.

The object of the action of reduction and declarator is to establish the right of Lord Fife's trustees to the superiority of the lands of Milltown and Mill of Leurarie, to which an entry was taken out, as will be explained, by the vassal, from another party as superior-viz. Sir J. G. Sinclair. Sir J. G. Sinclair pleads a title to exclude; and on that defence the case depends. No plea of res judicata has been proponed by the defender.

Whether Lord Fife or Sir J. G. Sinclair shall succeed, is a matter immaterial to the vassal; for the circumstances in which the former entry was obtained by his father clearly protect him from any claim at the instance of Lord Fife's trustees, if they shall be found to be the true superiors.

A title to exclude implies an admission, in argument at least, that the pursuers' title is otherwise a good and preferable title. But as a title to exclude in general requires complete, exclusive, and continuous possession, if the pursuers' title is preferable, it often happens that the effect and force of the title to exclude cannot be accurately estimated without considering the title of the pursuers, and the extent of the possession following on it. And, here, this is peculiarly the case; for the pursuers maintain that their possession was never interrupted, and that, in the most favourable view of the defender's case, there was at least divided possession-and hence, that the defender's case fails in one essential requisite of the title to exclude. That reply may obviously be much more formidable in a question as to a right of superiority, if the vassallage was originally constituted by grant from the pursuers' predecessor, and there has been only one entry taken from another party as superior.

The Milltown and Mill of Leurarie belonged in plenum dominium to the Breadalbane family before 1691. In that year they were feued out to Sinclair of Brims, by a title to be held under Lord Breadalbane. Sinclair of Ulbster acquired right to the superiority: The same Sinclair of Ulbster having right to the property, conveyed it to his brother Patrick for a feu-duty of £5 Scots. Sinclair of Ulbster conveyed the superiority to Brodie of Brodie, and Brodie to James Lord Fife. And Lord Fife, and Sir James Duff as liferenter, were infeft in the lands as superiors, and enrolled, after a keen opposition, in 1780; and on that title Sir James Duff voted, and remained on the roll, until 1839.

I understand the allegation, in point of fact, of Sir James Duff having voted, not to be seriously disputed, so as to require probation.

Nothing occurred to divest Lord Fife or Sir James Duff; the infeftment subsisted until 1839. By the other Sinclair-Patrick --and his brother, a title was made up to some of the lands conveyed by Sinclair of Ulbster to Patrick, correctly enough, under the crown, of which they held. But, in the infeftment, without any warrant in the charter, infeftment was by mistake taken in the lands of Milltown and Mill of Leurarie, as if a crown holdng; and that title was regularly and formally renewed by

Lord Caithness by retour and crown-precept. To the property he made up no title before his death; and the property not being carried by his entail, passed to his daughter Lady Fife, who was inteft in the same.

Her husband acquired the superiority duly by transmission from Brodie, as already mentioned.

The vassallage to which she thus succeeded through the personal right derived through her father from her uncle, was thus constituted by the predecessor of her husband in the superiority; for it was his predecessor who feued out the lands. And thus Lord Fife, by a regular progress of titles, was the superior of Lady Fife, who had no other title of possession to the property than the feu granted by her husband's predecessor. No entry had been taken by her uncle; and, of course, after her succession, an entry was not likely to be taken.

The Lord Ordinary had been led to suppose that the feu was constituted by grant from Sir J. G. Sinclair's predecessor: But that is a mistake. And it is a very important fact, in judging of the subsequent part of the case, that the vassallage was constituted by grant from the party from whom Lord Fife acquired the superiority, and that this vassallage subsisted uninterruptedly as the only title to the property at the time when Lord Fite and Sir James Duff were enrolled on the superiority.

A question arose under an entail by Lord Caithness, Lady Fife's father, who was the heir of entail. The Lord Ordinary has supposed that this case involved the right to the superiority in question, and considers this as a judgment on the very point now litigated. It has been fully and distinctly admitted that the lawsuit did not involve this question at all, and that the judgment does not in the least degree bear on the present cause.

The only point raised was, who was the heir of entail; and whether Lady Fife or Sir J. G. Sinclair took the estate entailed, whatever that was.

After this judgment, Lady Fife completed, by service, a title to the property of the lands.

About ten years after this judgment in 1775, but before Lord Fife had acquired the superiority from Brodie of Brodie, Sir J. G. Sinclair's grandfather raised a reduction and declarator claiming, first, the superiority of Forsie-which was not disputedthe property of these lands of Milltown and Mill of Leurarie; and it was also a declarator of a non-entry also as to these lands, but did not call Brodie of Brodie; and if intended to raise a competition, that action would have been as incompetent to try that point as the first action by the Fife trustees, dismissed by

us in 1844.

Lady Fife was called, and Lord Fife as her husband, and her disponee Captain Dunbar. Little progress was made in the action for twenty years. But, in the meantime, two important matters occurred.

After the action was brought, Lord Fife completed a title to the superiority in question of Milltown and Mill of Leurarie. Three years after the action was brought, having the fee of the superiority, and having conveyed the liferent to Sir James Duff, they claimed to be enrolled on these lands expressly, inter alia, in 1778, and their claim was rejected by the freeholders. The main ground of rejection was expressly the erroneous title completed by a crown-charter and infeftment in the superiority by the mistake above mentioned, and Sir J. G. Sinclair's alleged enrolment thereon.

The case was most fully investigated in this Court under a petition and complaint by Lord Fife and Sir James Duff, to which Sir J. G. Sinclair was the respondent, as the party personally interested. First, it was shown that Sir J. G. Sinclair's claim had not included this superiority, although his charter did. Then Sir J. G. Sinclair said, "But the superiority belongs to me." This point was elaborately argued as appears from the session-papers, which I have read. Lord Fife and Sir James Duff answered, "The crown-title founded on dating only from the crown-charter-for the previous inteftament was without warrant was an entire mistake, and an erroneous title; and as the competition arose long within the years of prescription, must be disregarded, the possession by the vassallage being undisturbed." This plea prevailed. The title of Sir J. G. Sinclair was disregarded, and Lord Fife and Sir James Duff enrolled as in right of this superiority. Now, this is a most important decision in the present cause. It expressly prefers and sustains the title of Lord Fife by a judgment which was opposed by the very title on which Sir J. G. Sinclair now founds; and there has been continued possession on that decree.

This point appears to me of the highest importance in the cause.

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