A variety of points were pleaded, but ultimately the question turned, as appears from the papers, on the question, Had Lord Fife and Sir James Duff a clear right to the superiority. They founded on their charter and infeftment in the lands-and that there was a proper vassallage was not disputed. The competing title was disregarded. They were enrolled, and Sir James Duff remained enrolled, and voted, until his death in 1839.

I regard this procedure in two points of view.

In the first place, I view it as a decree giving effect to Lord Fife's title in competition with the ancestor of Sir J. G. Sinclair-and on that decree possession followed continuously and together for fifty-nine years, until 1839. Sufficient attention has not been given to the importance of that judgment in this point of view. It is a decree giving effect to the title by enforcing possession in a very open and public manner-and on that decree possession continued. Suppose Lord Fife's heir had claimed enrolment on his death, or on the death of the liferenter in 1889, (apart from any change made by the reform bill), it would not have been possible to contend successfully that the benefit of that decree in 1780 had been lost.

In the second place, I cannot concur with the Lord Ordinary in holding, that the enrolment under a decree of Court is not possession of a superiority, especially in a blench holding. Whether complete possession, if founded on to support a title to exclude, is another question. But possession it certainly is; and for twenty years afterwards it was the only possession by any one pretending right to the superiority. I regard it as proper possession-being a public right expressly attached to the right of superiority. Before that public right can be given, there must be a title and proper possession. When the property does not belong to the party, there must be a proper vassallage, and then the superior is in possession by his vassal, although he has given no entry-though the lands may have been long in nonentry-which is a matter jus tertii to the freeholders-and although there are no feu-duties, or none have been paid. But further, it is possession on a decree giving effect to the right in opposition to the title proponed by the defender's ancestor; and although not of the same character as a decree in a declarator of right, still it is a decree followed by possession.

The points were expressly brought into discussion in the question in 1780, which resulted into a competition between Lord Fife and Sir J. G. Sinclair. Sir J. G. Sinclair disputed Lord Fife's title and right. He maintained the title was vested in himself. He maintained that Lord Fife had no possession, and opposed his enrolment, which, he further said, could only be accomplished, in any view of the case, by a reduction of the titles in his person. On all these points the Court necessarily gave judgment, for they repelled all these objections, in themselves relevant and fatal if well founded, and ordered Lord Fife and Sir James Duff to be enrolled. Now, that judgment really gave possession to them; it repelled all the objections which could be stated against their right; it sustained that right as complete in all the requisites to constitute a valid and effectual right of superiority; and it put them into possession against the opposition of the party having a competing title. In this state things continued until the death of Sir James Duff. But, in the interval, occurred the facts on which the title to exclude is founded.

The action raised by Sir J. G. Sinclair in 1775 seems to have been renewed about twenty years afterwards; and the question was then tried, whether the property of these lands, Milltown and Mill of Leurarie, belonged to Lady Fife or Sir J. G. Sinclair. This question was elaborately argued, and we have had a very full view of the pleadings given to us. It was de. cided in favour of Lady Fife. The whole titles, both to superiority and property, were fully commented on. She admitted that Sir J. G. Sinclair alone had the superiority of Forsie, which she never claimed. But she farther stated, that Lord Fife had the only title to the superiority of the lands of Milltown and Mill of Leurarie, of which she claimed the property; and I can. not see that Sir J. G. Sinclair ever openly claimed the superiority of these particular lands. When the question as to the property was decided in her favour, the judgment pronounced went too far, for it at once assoilzied the defenders, although Sir J. G. Sinclair was clearly entitled to decree in the declarator of non-entry for the lands of Forsie, which indeed no one opposed. His petition shows that his application really related to the superiority of Forsie alone. It is clear that Lady Fife's advisers and Lord Fife understood this to apply only to the lands of which they had admitted that the superiority was in Sir J. G. Sinclair; and

it could not be otherwise, when, in the long paper on which the judgment of the Court had been pronounced, they pointed out so fully the different state of the titles as to the superiority of Forsie, and of the Milltown and mill-lands of Leurarie, as belonging to Lord Fife alone. When this decree came to be extracted, it was written out in terms of the summons.

This is a decree of non-entry in the usual terms.

The estate of Dunbar of Westfield, who had bought from Lady Fife, the property was under a ranking and sale, and the common agent seems to have had some apprehension as to the effect of the interlocutor in the Outer-House, and entered appearance by a representation stating that he had not seen Sir J. G. Sinclair's titles. Lady Fife had made no appearance at all after the Inner-House judgment. Sir J. G. Sinclair answered the common agent, 1st, by referring to the title which had been held insufficient in 1780; and, 2d, founding on a mistake in the com. mon agent's own memorial and abstract, in which, by a confusion, he had stated that the subinfeudation was the act of Lord Murkle.

This seems to have satisfied the common agent, and so the decree was extracted in the terms founded on.

The Lord Ordinary holds this to have been res judicata against Lord Fite. It is not so founded on, and no such plea was maintained on the record On the contrary, the counsel expressly stated, that they did not contend that it could raise the plea of res judicata. But it was contended that the facts as to the liti gation gave importance to the acts which followed on that decree. Sir J. G. Sinclair claimed a year's rent of the whole lands of Forsie and others from the vassal, and a composition from the purchaser; and there is no doubt that the rent of the Milltown and Mill of Leurarie was ineluded.

I am of opinion that the possession by this act can only date from the payment, and not from the date of the decree.

There had been no decree against tenants-neither, indeed, was that necessary from the nature of the case, as the vassal was to pay.

On this decree a claim was made by Sir J. G. Sinclair in the ranking and sale, and sustained. To the mere effect of this I am not disposed to attach much weight. The possession of Sir James Duff was in no respect disturbed. The relation of vassal, constituted by the grant of his ancestor, was in no respect weakened or altered by any such payment. It has been found, at a very early period-Harper, 25th Jan. 1672-that civil possession by a decree is not sufficient in a competition against a preferable title. Neither am I prepared to admit, that, in a question of possession, a decree which is admitted not to be res judicata, or a judgment on the merits, is of the same force as a feudal title in the heritable subject, although the decree may have been followed by payment. I understand the benefit of a decree, which was a judgment on the merits; but I see no authority which puts on an equal footing with a proper feudal title a decree which is not pleadable as a judgment on the merits. But when the question is, whether the superior has thereby lost his vassal, and the relation destroyed which the superior's grant duly constituted, I have no doubt whatever that this decree, and the payment following on it, are wholly insufficient to establish a title to exclude. But, then, the important faet founded on by Sir J. G. Sinclair is, that he granted an entry to the purchaser by a charter in 1801, by which the purchaser became his vassal, and held under him.

Whether the reduction, brought within the forty years, al though dismissed, was a sufficient interruption, I need not consider, and abstain therefore from indieating any opinion on that point-except that I do not thereby mean to imply that I have formed any opinion adverse to the plea of interruption.

The charter is undoubtedly one of the most important acts of possession which a superior can exercise, and the vassal, from that date, holds unquestionably under the party so granting the charter. But the act was not of a character to destroy or evacuate the possession actually held by Lord Fife and Sir James Duff. It is assumed by the Lord Ordinary, and in argument by the defender, that neither could, after the charter 1801, have taken the trust oath, or been kept on the roll, in respect that they were out of possession. Now, that is a complete mistake. 1st. The words of the trust-oath import no such result at all. But, 2d. It is a point which has been frequently decided, that the act of the vassal by changing the holding, or even the loss of the superior's right to exact the feu-duties by a declarator of tinsel against himself, and by the vassal taking a charter direct from the crown does not impair the superior's right. In the

very case in 1780, one point decided, and the only one reported, is, that though a decree of declarator of tinsel of superiority had gone out against Brodie of Brodie, and a charter had been obtained by the vassal direct from the crown, so that all right to the whole profits and rights of the superiority were lost for the time, and the vassal held direct from the crown, still that was no bar to the party acquiring the superiority being enrolled, for the relation of superior and vassal could not be destroyed by one act of that kind, even when originally in the act of the superior, and that the possession was still the possession of the proper superior, whose grant constituted the vassallage. This has been decided also in stronger cases.

Again, in a case which I shall merely advert to, although the vassal had made up a regular title from the crown, but without notice to the superior, and was thus the direct crown vassal, still the former superior was held not to have lost his right to exercise the superiority by the act of the vassal, and was enrolled accordingly, without the necessity of reduction; and this judgment was affirmed on appeal. Hence, I have no doubt whatever that Sir James Duff remained in the full right to exercise his superiority up to his death in 1839. If so, I cannot hold the possession to be such as to raise up a title to exclude of which exclusion possession is, as here, an essential requisite.

But we must consider more attentively what the plea is which is founded on the granting of this charter. In the first place, the negative prescription cannot be pleaded against Lord Fife and Sir James Duff. The mere omission to do certain acts, whether granting an entry, not drawing feu-duties, casualties or composition, is of no importance; and when the holding is a blench holding, the omission of such demands would be immaterial, even if the negative prescription could be pleaded.

Then, though the charter 1801 was an adverse act of possession, yet it was not equivalent to the possession by the vassal on a crown-charter for forty years. Throughout the argument, it was assumed that, in regard to the effect of a prescriptive title, the case was the same as if a party had had full possesion of the plenum dominium by the vassal having obtained a crown title, and so consolidated superiority and property. But I cannot give such effect to possession which consists in the grant of a single entry to a vassal, even although that vassal had lived for forty years. But, in truth, Mr. Sinclair died in 1823, and after that there was no renewal of the investiture by the defender, Sir J. G. Sinclair.

While, therefore, there was clearly adverse possession, it was. not, in my opinion, complete prescriptive possession, such as is required to sustain a title to exclude. As the majority of the judges stated in the case of M'Donnell v. Duke of Gordon, the possession must always be judged of secundum subjectum materiam. Now, I cannot at all regard the possession by the grant of a single entry as equivalent to the actual and real possession of the lands by a crown title consolidating the plenum dominium. Yet this is the effect ascribed to the grant of an entry by a party as superior. I can find no authority or case giving this effect to one grant of an entry to an heir, and much authority adverse to the notion.

But there are other two considerations which are material in considering the weight due to this adverse possession.

1. During the whole of this period, the prior and preferable title had the uninterrupted benefit of the decree of the Court in the enrolment case in 1780; and of that benefit nothing occurred to deprive them.

2. And more particularly, this grant of an entry by Sir J. G. Sinclair in 1801 was an act done only in virtue of the very same title on which they had opposed Lord Fife's right to the superiority in 1780, and which title had been disregarded as erroneously made up. At the date of the charter 1801, the case was not that Sir J. G. Sinclair had acquired the superiority by onerous right, completed a title in his person, and then granted this entry. The charter was granted solely in respect of the former title, the legal effect of which Lord Fife knew had been considered in 1780, and of the terms of the extracted decree in 1796. Judgment it could not be called on the point. And, in the recent discussion, the exact state and effect of the titles to the superiority of these lands had been fully discussed; and Sir J. G. Sinclair had never directly asserted his title to this superiority in that discussion.

While, by the inattention of Lord Fife to his rights, this undoubtedly adverse act of possession did take place, and while I admit the importance of it, yet I cannot regard it as sufficient

to sustain, in the circumstances, the title to exclude. The law has always been slow to give any effect to the act of the vassal, whose feu flowed from one superior, in taking entry from another superior, or even in completing a crown holding, although on an ex facie good warrant.

A very important case, illustrating this point, will be found in 1754-Campbell v. Stirling, M. 2439, and in other reports. Enrolment was there claimed by a party in possession of a proper wadset of the superiority. Various other points occurred. But, both from the reports and the session and appeal papers, this point came out distinctly-the vassal, Lord Forrester, had obtained, and not incompetently, although improperly, a crowncharter several years before the claim for enrolment, and so consolidated superiority and property; and it was therefore objected very strongly, that the right of superiority could now receive no effect, for there was no vassal at all.

But the answer, sustained in this Court and in the House of Lords, was this-viz. that the vassallage having been once duly constituted, could not be injured by the act of the vassal, even in that the strongest case of the vassal having obtained a crown holding. No doubt, forty years possession by the vassal of the plenum dominium would have consolidated the feudal rights, and excluded the superior; but, as Lord Monboddo's report bears, (5 Sup. 1812)" The question here was about the possession of a feu-superiority, of which neither the feu-duty nor any casualty of the holding had ever been uplifted by the present superior or his authors. The Lords found that the possession of a superiority was not properly by uplifting feu-duties or casualties; but if the vassal possessed upon a right derived from the superior or any of his authors, then his possession was, in the construction of the law, accounted the possession of the superior, in the same manner as a master possesses by a tenant to whom he has given a tack, though he uplifts no rents from him. But what made the difficulty in this case was, that the vassal had taken a charter from the crown, and had possessed the lands for several years without any challenge from the subjectsuperior. The question was, whether his possession was by this means inverted; and whether or no the crown was not to be considered in possession of the lands by its vassal, and not the subject-superior? And the Lords thought not, and that the subject-superior still continued in possession notwithstanding of this clandestine right taken from another superior.

"Lord Elchies said, that, in a competition with a third party about this right of superiority, the years during which the vassal possessed upon the clandestine right from the wrong superior would be imputed into the prescription of forty years, provided only that the vassal did not possess so long upon the new right as that the old was lost by prescription."

Thus, during the forty years, even in that case, the possession of the vassal, although on a crown title, would have been held still to be for the right superior; and nothing short of the consolidation and possession of the plenum dominium for forty years could exclude the right superior.

But there is a great distinction between such possession by a vassal in the actual occupation of the lands, who has also a crowncharter and infeftment for forty years-and the adverse possession in this case, by one superior granting an entry to the vassal to the prejudice of another, and ex hypothesi a preferable right of superiority—especially if not only that superior's infeftment remains undisturbed, but he also continues in the exercise of other rights attached to the superiority.

In the first place, to make the entry at all effectual, the vassal must have continued on that title for forty years: That I think clear. If the vassal dies, and there is no renewal of the investiture, the effect of that adverse act is interrupted, and there is not a proper continuation of the adverse possession at all sufficient in a question of prescription. This point was not attended to in the argument, but is, in this question to exclude, of great importance. Though the last entry was from the defender, yet the vassallage was constituted by the grant of Lord Fife's predecessor; and until another entry is granted, there is no continuous adverse possession whatever.

I do not say that I apply to this case all the views stated by the Court as to the effect of a single act of presentation in the question of prescription, although the incumbent lived for forty years. It is not necessary to give any opinion on the abstract question which might arise on the effect of an entry when the vassal lived for forty years after the entry. I shall only say this, that the opinions of the Court in the case of Glengarry v. Duke of Gordon, 26th Feb. 1828, will require very careful considera

tion, for some of them, as reported in the Faculty Collection, such as Lord Glenlee and Corehouse, bear directly on this very question, and unfavourably for the pleas maintained by the defender, founded on one entry by a party as superior. But, at least, I think it essential to complete the possession in such a case, and to make it continuous, that the vassal should live for forty years after the entry. If not, I think the adverse possession is not continuous. On this separate ground, I think the defender's case fails. The possession was not continuously and together for forty years.

Lord Moncreiff-I think this a difficult case. And though I do, with some difficulty, come to the same conclusion with your Lordship, my views on the case, as argued before us, are materially different.

In the course of the discussion in this cause, my impression concerning the just result has occasionally varied. Whatever judgment shall be pronounced, it is of importance that nothing should be done, and no opinion of the Court indicated, which can be thought to trench, in the slightest degree, on the law of positive prescription, under the statute 1617, c. 12. The pursuers, by the summons now before us, maintain their right to the superiority of the subject in question by a deduction of titles as in their persons, in virtue of which they insist for reduction of those titles, by which it appears to be at present vested in the defender. The defender, on the other hand, produces his own title by charter and seisin, connecting with previous titles under the crown, expressly comprehending the same lands, whereby, and on an averment of exclusive and uninterrupted possession for above forty years, he maintains that he has a title, by positive prescription, sufficient to exclude the title of the pursuers, and to supersede and render incompetent all inquiry into the merits of the respective titles themselves.

Accordingly, I understand the state of the case, as it has been argued before us, to consist simply in this question, whether the defender has produced, and has sustained by sufficient statements of fact, the title to exclude on which he founds his defence, the defender declining to enter into any discussion concerning the intrinsic merits of the titles otherwise. In this the defender follows a course in which he is clearly justified by the law of prescription, and the practice under it, if he can establish his exclusive title on solid grounds.

Although, therefore, the pursuers have, very naturally, been anxious, in the various hearings we have had, to convince the Court, by a deduction of the earlier titles, that they have substantially the preferable right to the superiority of the lands in question, I think it altogether unnecessary, in the present shape of this cause, to form any opinion on the merits of the plea to that effect. All that I can hold is, that the titles exhibited by the pursuers are sufficient to place them in titulo to insist in the reduction of the defender's titles, unless it shall appear that those titles of the defender, with the possession averred, constitute a title, by positive prescription, to exclude the pursuers from any such inquiry.

The title to exclude, however, is set forth at length in the defender's statement on record in articles 2, 3, &c. and 7 inclusive, consisting of charters and seisins connected by services, from 1761 down to the defender's infeftment in 1797. And I understand the pursuers to have distinctly admitted that this is a sufficient title for prescription. The single point of controversy, therefore, is, whether the defender has shown sufficient possession on those titles, according to the terms of the statute 1617, for more than forty years preceding the date of the present action of reduction.

The terms of the statute are very clear and precise; and whatever may be the result in any particular case, it is always of importance to keep them steadily in mind. It provides, that whosoever his Majesty's lieges, &c., their predecessors and authors, have bruiked their lands and other heritages, "by virtue of their heritable infeftments made to them by his Majesty or others, their superiors and authors, for the space of forty years continually and together, following and ensuing the date of their saids infeftments, and that peaceably, without any lawful interruption made to them therein during the said space of forty. years, that such persons, their heirs and successors, shall never be troubled, pursued nor inquieted, in the heritable right and property of their said lands and heritages foresaid, by his Majesty or others, their superiors and authors, their heirs and successors, nor by any other person pretending right to the same by virtue of prior infeftments, public or private, nor upon no other ground, reason or argument, competent of law, except for

falsehood," provided they produce charter and seisin preceding the entry of the forty years' possession, or one or more seising standing together for forty years, &c. If there is a clear title according to the terms of the statute, and such possession as the statute describes, the right is secure against every challenge; and however plausible the show of a superior title may be, it would be an unspeakable mischief to disturb the effect of the law in this respect.

But the possession must be-1. For forty years following the date of the infeftments, which is interpreted to be forty years backwards from the challenge, if posterior to the date of the titles. 2. It must be continual; that is, according to the nature of the right. 3. It must be peaceable. And, 4. It must be "without any lawful interruption made to them therein during the forty years." It is necessarily implied in these qualities, descriptive of the possession necessary, that the possession must be exclusive. For it could not be either possession for forty years at all of the disputed subject, or continual, or peaceable, or without lawful interruption, if, during the period, or during any part of it, another party had any possession of that subject. The defender says that he has had such possession at least since 1796-which of course would, in my opinion, be sufficient to establish the right. To make out this matter of fact, he founds, 1. On the decree which was pronounced in 1796, at his instance as superior, finding the lands to be in non-entry, and the defender to have right to enter on the lands, and to draw the rents as long as they should continue in that state; 2. On the fact that, in the process of ranking and sale of the estate of Dunbar, in whom the property of the lands stood, the defender made a claim to the arrears of rent; 3. That, in virtue of a judgment by the Lord President Blair as arbiter, he was actually preferred to one-half year's rent; and, 4. That, after some delay, he actually obtained payment of that half-year's rent. But he farther says, 5. That Sinclair of Forss, who purchased the lands, demanded an entry from the defender as his superior, and that, in consequence of that demand, a charter was granted in 1801, on which Sinclair was infeft; and that, on that title, the possession has stood ever since. It was disturbed, indeed, by a summons in 1841, a few weeks within forty years from the date of the charter; which summons, however, was found to be incompetently laid in regard to any interest of the defender, and was dismissed. And so, the present summons not having been raised till 1845, the defender says that prescription was completely run.

The plea of the pursuers is, 1. That the possession alleged was not possession during the forty years from 1796; that the decree obtained in that year was not possession; and that there was not any other possession till within the forty years preceding 1841; and that the summons in that year was sufficient, notwithstanding the defects of it in form, to interrupt the currency of the prescription. But, then, the pursuers say, 2. That such possession as the defender had never was exclusive, in respect that Lord Fife and Sir James Duff had made up a title by charter and seisin under the crown, in this very subject inter alia, and that, in virtue of that title, they had been enrolled in the roll of freeholders-Lord Fife in liferent, and Sir James Duff in fee, in which right they continued-Lord Fife till he became a British Peer, and Sir James Duff until his death in 1839; and further, that one or other of them had, in virtue of that title, voted in various contested elections of members of parliament for the county of Banff.

In this state of the controverted question of possession, I think that it is rather unfortunate that there thould be any matter of fact not perfectly ascertained. Yet I suspect that it is so, though the particular point in which it occurs may not be necessary to the decision of this cause.

Looking back to the first plea of the pursuers against the possession alleged, the pursuers insist that the decree pronounced in 1796, which declared the lands to be in non-entry, at the instance of Sir J. G. Sinclair as superior, cannot be regarded as an act of possession. It is not maintained to be res judicata on the merits of the title. But the defender still says that it was an act of possession, or a judgment which gave him possession; while the pursuers insist that, though it gave him a right to possession, it cannot be taken as equivalent to possession itself. I do not think that this point is altogether free from doubt. For it might reasonably be held, that the demand of a declarator of nonentry was a demand of possession under the title, and that the decree which declared in terms of that demand was a decree vesting that possession, though it might require other procedure

to render it absolutely effectual. I only mean, however, to express some doubt on this question, seeing that I do not think that, in any view, the case depends on it.

But the estate of the vassal Dunbar having been brought to judicial sale, the defender made his claim for the rents in the process of ranking and sale. Now, the fact to which I referred as not fully ascertained is the date at which that claim in the ranking and sale was made. It is not specifically set forth in the record. An objection had been taken in the process of ranking and sale against the property being included in it; and, on the 20th February 1798, after the decision in the declarator of non-entry in December 1796, that objection was repelled, reserving the defender's right to the superiority thereof, as accords. And the record bears, that "the defender, as the superior, then made a claim for the non-entry duties," &c. I should infer from this statement that the decree of declarator had been extracted before the 20th February 1798-that the defender was then a party in the process of ranking and sale-and that, immediately after that judgment in February 1798, he made his claim in the ranking and sale for the non-entry duties. Accordingly, I understood the Lord Advocate to state distinctly, that the decree was extracted before February 1798, and that the claim on the ranking was then made.

I consider this to be a point of importance. For, assuming that the defender, holding the decree of declarator, entered his claim in the ranking, in virtue of it, in 1798, it appears to me that that must be regarded as a positive act of possession. It was all that he could do; for he could not get the rent from Dunbar, or from any of his tenants, while the estate was under ranking and sale. He claimed it, therefore, in that process; and I think that the matter ought to be considered as if he had then obtained judgment for the rent, to which he was ultimately found entitled. The delay in fixing the mere amount of the rent due to him cannot alter the legal effect of the claim as it was ultimately settled, for during that delay the common agent in the ranking must be held to have possessed all the rents for the several claimants according to their rights, and this particular half-year's rent for the defender Sir John Sinclair.

Then it farther appears that the defender obtained actual payment of the half-year's rent awarded to him by the deliverance of Mr. Blair, as arbiter, as confirmed by the judgment of the Court.

The estate having been in the meantime sold to Sinclair of Forss, he took an entry from the defender by the charter in 1801; and I thought there was no question that, from that time, the possession, being under that title, must be considered as the defender's possession, at least till the first summons was raised, in 1841. For I am not prepared to hold, that if Sinclair, the vassal, died, the possession of his heir-apparent was not of the same character. No such point was pleaded to us, and I am not prepared to go on it. The defender was not heard on it.

How, then, would the case stand if there were no separate question on the effect of the enrolment of Lord Fife and Sir James Duff? I apprehend that the prescriptive right would be established. For, 1. Assuming that the decree in 1796 did not constitute possession, I think that the claim made in the ranking and sale in 1798, though it did not receive effect till sometime after, must be considered as a positive act of possession. I think that it is as much so as an action of maills and duties would be, though protracted, before decree, by the bankruptcy of the party or otherwise. But there was no interruption given to the possession so established till the first action was raised in 1841, before which time the prescriptive period had run. Then, 2. On the 10th March 1801 the charter was granted, and on the 11th March 1803 decree was given for actual payment of the half-year's rent found due to the defender.

The summons in 1841 was executed in March 1841. If the defender had legal possession in 1798, even that summons could not stop the prescription. But even if it were otherwise, and if the case shall appear to depend on the effect of the summons in 1841, as an interruption of the prescription, there is a serious question involved in it. For though it was once said that a summons informal or incompetent in itself might operate as an interruption of prescription, I am not prepared to hold that doctrine. The summons in question was held to be incompetently laid, and was dismissed as to any conclusions against the defender, on that ground, by a unanimous judgment of this Court. But if that summons was not effectual to stop the currency of prescription, then there was no interruption of it until the summons now before the Court, which

was dated and signeted on the 7th October 1845, was broughtbefore which time prescription, in every view, had run.

If, therefore, the case of the pursuers rested on this point, I should be of opinion that there are sufficient grounds for holding that the statute must take effect to establish the exclusive title in the defender.

II. There is, however, undoubtedly, another point which presents a very serious difficulty in the defender's plea of prescription. It is not properly a statement of interruption, but rather a plea, that, granting all that the defender says otherwise, he had not exclusive possession during the currency of the forty years, inasmuch as, during the greater part of the time, Lord Fife and Sir James Duff stood enrolled on the roll of freeholders on this very superiority, and actually voted in various contested elections for the county. This part of the case appears to me to be attended with considerable difficulty.

The claim of enrolment was made in 1779 by Lord Fife and Sir James Duff. The Lord Ordinary says, in his note, that it was not objected to. This is a mistake. Not only was it objected to, and objected to specially, by Sir J. G. Sinclair, but the freeholders having sustained the objection, a complaint against that judgment was brought before the Court of Session under the statute then in force. The case was discussed at large; and it seems to have depended on this point, that Sir J. G. Sinclair had obtained a decree of tinsel of superiority, and had then gone to the crown and obtained a charter for infefting him under the crown supplendo vices, on which he was infeft. But it was argued successfully that the act 1474, on which the declarator had been obtained, only inferred a loss of the nonentry duties during the life of the immediate superior, and that, in other respects, he continued to be still the true superior. The case is very shortly reported in the folio dictionary; but there is a very full report of it in Mr. Robert Bell's Treatise on Election Law, p. 84. And the judgment of the Court is given thus: "The Court were of opinion that the claimants were entitled to be enrolled-thus finding that the immediate superior, notwithstanding the declarator, still retained his right to the feu-duties, and all the privileges as crown-vassal; and, as having right to the feu-duties, he was considered as fully in possession." Thus it was held that the title of enrolment was good, and that there was sufficient possession to sustain it, even if the oath of trust and possession were tendered.

Lord Fife and Sir James Duff having been thus enrolled under an express judgment of the Court, they were standing on the roll when Sir J. G. Sinclair obtained his declarator of non-entry in 1796. Lord Fife was only made a peer of Great Britain in 1827; and Sir James Duff only died in 1839.

Now the question which must be resolved is, whether, while, in virtue of their title, Lord Fife and Sir James were, as superiors, in the enjoyment and exercise of the elective franchise, it can be held that Sir J. G. Sinclair had, on the facts already adverted to, not only a certain possession of the right of superiority under his own separate title, but an exclusive possession. There is some difficulty in it. But, on the best consideration I can give to the point, I am inclined to think, that even supposing the possession to have been otherwise sufficient for prescription, it cannot be stated to have been exclusive.

The difficulty in the point which occurs to me is this:- In the discussion on the question of enrolment, the claimants were pressed with this objection, that they could not have taken the oath of trust and possession. The answer which was made to that objection was, that, in fact, they had sufficient possession, notwithstanding the declarator of tinsel, and Sir John Sinclair's charter and infeftment, having still right to the feu-duties. That is a part of the case which I do not perfectly understand; because, as I understand the titles now, it is stated by both parties to be a blench holding, in which there could be no feu-duties. On that principle, however, the Court decided. But the difficulty here is, that, in 1796, Sir John Sinclair obtained decree finding him to be superior, and declaring the lands to be in non-entry, and Sir John to have right to the non-entry duties. Now, supposing that the judgment of the Court was perfectly right on the case as it stood in 1780, and that Lord Fife and Sir James Duff had sufficient possession to entitle them to enrolment, is it perfectly clear that, after decree and declarator of non-entry in favour of Sir J. G. Sinclair, these parties could, without any reduction of Sir John's titles, be in safety to take the oath of trust and possession? I think this somewhat doubtful. For, by decree of the Court, Sir John Sinclair stood as the recognized superior in the lands, that he claimed and obtained

payment of a half-year's rent as non-entry duty, and that, in 1801, he granted the charter to Sinclair of Forss, which still stands unreduced, and, in granting it, obtained a composition for the entry.

There is, however, a separate point connected with the question, which may perhaps in some measure obviate the difficulty. I understand this to be a blench holding; and assuming it to be so, it is, or was, a ruled point in the old election law, that, in the case of a blench holding, the investiture on the title of superiority itself was sufficient to sustain an enrolment, and the parties so enrolled were to be considered as in possession, although, by the nature of the title, there was no feu-duty, or other return, which could be possessed. So the law is expressly stated both by Wight, vol. i. p. 257, and by Bell, 451, 452. Hence, when such titles of superiority come to be split and divided, and it was impossible for each of the parties who received portions of it to have possession of a single indivisible reddendo, of a rose noble, a peacock's feather, &c., si petatur tantum, still the divided portions were held to give to each of the parties holding them a good title of enrolment, if the valuation were sufficient, and to justify each of them in taking the oath of possession. And this was all sanctioned by the House of Lords.

In this view of the matter, the difficulty to which the Lord Ordinary alludes may not exist: And still Lord Fife and Sir James Duff may have stood upon the roll and voted in various elections. And then the only objection comes to be rather of a fine and doubtful nature, that there being declarator of the defender's title as superior, and a warrant for entering on the lands, and that title having been exercised in the way to which I have already adverted, must it be held that there was still, not an adverse title merely, but an adverse possession, by the enrolment still standing in the books of the freeholders. I have not any doubt that a legal enrolment as a freeholder was an act of possession, supposing it to be validly established, in title and in possession. And all that remains is, that a contrary adverse title had been constituted, and confirmed by declarator of non-entry, and the actual levying of rent under that decree, as well as the entering of a vassal in the lands, and receiving the composition; and that that decree stood unreduced during all the years from 1796.

J

We are not quite so familiar with this branch of law as we formerly were; and there may be other views of this matter which I do not clearly see. But, on the whole, I am inclined to think, though not without some difficulty, that the possession had by Sir J. G. Sinclair, from 1796 downwards, cannot be con sidered as having been exclusive, and, therefore, that the title to exclude by a prescriptive right has not been made out in the present case.

Lord Medwyn was of opinion that the defenders had not established a title sufficient to exclude the pursuers.

Lord Cockburn concurred.

The Court pronounced the following interlocutor:— "Alter the interlocutor; find that the defender Sir John Gordon Sinclair has not produced a title sufficient, in the circumstances of the case, to exclude the action by the pursuers on the titles libelled on, as vesting them in the right of superio rity of the lands of Milltown and Mill of Leurarie: Therefore, and in respect that there is no defence on the merits, reduces the titles called for, and produced by Sir John Gordon Sinclair, as vesting the superiority of the said lands in him, but in so far only as the same relate to the superiority of the said lands ; and find and declare, in terms of the declaratory conclusion, that the pursuers have the only good and undoubted right and title to the superiority or dominium directum of the said lands of Milltown and Mill of Leurarie, and that the defender has no title, and has had no possession of the same, that can compete. with the right and title of the pursuers, and that the pursuers, accordingly, are entitled to possess the said subjects, or the superiority or dominium directum thereof, and to uplift and receive all the duties, casualties, and emoluments thereof belonging; and prohibit and discharge the said defender from troubling and molesting the pursuers in the peaceable possession thereof: And in regard to the defender Mr. Sinclair of Forss, find that the late Mr. Sinclair, his father, was warranted, in the circumstances, in taking out an entry, and paying a composition for the same to the said Sir John Gordon Sinclair, and that no claim can lie against the present defender, at the instance of the pursuers, in respect of the judgment now pronounced in their favour against the said Sir John Gordon Sinclair; and, there

fore, in respect of the consent of the pursuers, assoilzie him from the conclusion of reduction so far as directed against the title made up by the late Mr. Sinclair of Forss; but find that he must now take an entry from the said pursuers, as the true and lawful superiors of the said lands; and in respect of the above finding in favour of the said defender, find that the said entry must bear to be a renewal of the title granted to his father, and must proceed specially on a recital of the present judgment of the Court; and decern: Find the said Mr. Sinclair of Forss entitled to his expenses from the pursuers; allow an account, &c.; and find the pursuers not entitled to expenses from the other defender."

Lord Ordinary, Cuninghame.-For Lord Fife's Trustees, Sandford, Neaves; Inglis and Burns, W.S. Agents.-For Sir J. G. Sinclair, Lord Advocate (Rutherfurd), Shaw; J. and J. M. Balfour, W.S. Agents.-For Mr. Sinclair of Forss, Marshall; G. L. Sinclair, W.S. Agent.-R. Clerk.—|F.H.|

OUTER-HOUSE-LORD CUNINGHAME.

No. 30.-M'LAREN v. M'Donald.
Process-Divorce-Oath of Calumny.

By § 36 of the statute 11 Geo. IV. and 1 Will. IV. it is enacted, that "the Lord Ordinary shall, in all actions of divorce, administer the usual oath of calumny to the pursuer."

In this case, where the pursuer resided in a distant part of the country, on proof of her being advanced in life, and in bad health, the Lord Ordinary granted commission to any justice of the peace in the neighbourhood to administer to her the oath of calumny.

(See Orde v. Murray, 14th Feb. 1846; ante, vol. xviii. p. 249.) Act. Shand. Alt. ― J. Macara, W.S. Agent.-F.H.]

30th November 1849. FIRST DIVISION.

No. 31JAMES RAMSAY, Pursuer, v. JAMES BRUCE, Defender.

Summons-Relevancy-Seamen's Act-Statute 7 and 8 Vict. c. 112-Process-A sailor raised a complaint before the justices against a shipmaster for non-delivery of his register ticket, in which he quoted section 29 of the seamen's act, and concluded for a penalty of £10. The justices having assoilzied, the sailor raised an action of reduction, in which he recited the complaint, and stated as a reason of reduction that the justices were bound, under section 4, to have subjected the defender in a penalty of £10. The defen der objected, that the summons being, on its own showing, irrelevant and inconsistent, he was not bound to satisfy the productionTerms of a summons under which the Court sustained the defences, and dismissed the action,

Ramsay, a mariner in Dundee, raised a summons of reduction against Bruce, shipowner there, which bore, that, on 17th April 1848, the former agreed to proceed as mariner on board the defender's ship for a particular voyage; that he signed the ship's articles, entered on board, and delivered to the defender's captain his registered seaman's ticket; that, on the 19th April,

"the defender intimated that the vessel was not to proceed on the proposed voyage, dismissed the pursuer from the vessel, and thereby committed a breach of the foresaid engagement: That, on thus dismissing the pursuer, the defender not only detained his chest and clothes, but also causelessly and illegally retained his registered seaman's ticket: .... That the defender having persisted in keeping possession of the pursuer's registered seaman's ticket, and seeing that he had thereby incurred and subjected himself in the penalty of £10 sterling, imposed by the statute 7 and 8 Vict. c. 112, the pursuer next, in terms of said statute, and upon the 25th day of the said month of April, resorted to a petition at his instance to the justices of peace for