Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 PRESCRIPTION.
Subject_3 An erroneous Tenure of Lands becomes good by Prescription, though the vassal had not discharged the burdens of it.

Duke of Buccleugh
v.
The Officers of State

Date: 5 August 1768

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[Fac. Coll. IV. p. 321. Dict. 10,711.]

Alemore. I must presume that there was a blunder, if no resignation is produced. There has been no possession, consequently there is no prescription.

Hailes. Sir John Gilmour, president of the Court of Session, was called up to London on purpose to advise the Duchess of Buccleugh's marriage-contract. I would rather presume that there was no blunder in a deed advised by so able a lawyer. The pursuer's only title is as heir to Francis Earl of Dalkeith, under the charter 1742. That charter does not contain the alternative aliisque jus habentibus, on which the pursuer's argument is founded. He must take his own charter as it stands.

Kaimes. If the wardholding had continued, the family of Buccleugh would have clung to this feu-right. Why should they be allowed to recur to the ward-holding, after they have been abolished by law.

Pitfour. If there was no prescription, the family of Buccleugh might recur to the old right. But I cannot get over the exception of prescription. Prescription must be according to the nature of the subject. The possession of superiorities does not depend upon the levying of feu-duties: the question is, who was owned as superior? Here it is plainly the Crown. Sir John Ker was never owned. There is also an acknowledgment by charters that the lands held feu. We cannot give any judgment as to bygones: they must be judged of by the Court of Exchequer.

President. I doubt whether the feu-duties belong to the Crown; but that cannot be determined here. The only question is, as to the nature of the holding. Supposing that Sir John Ker had contrived to levy the feu-duty, would not the holding have been still of the Crown?

Auchinleck. Every charter granted was a virtual acknowledgment, on the part of the Crown, that there was some other person in the right of the superiority: aliis jus habentibus is a very singular clause, and is of that import.

Coalston. I always supposed that the charter 1664 was erroneous, and that the family of Buccleugh might have been restored, if a demand to that effect had been timeously made. I should have thought that the Crown would have acquired right had there been no specialty here. The only difficulty is from the clause to those having right. While such a clause is in the charter, how can the Crown be said to have acquired a right?

On the 5th August 1768, the Lords sustained the defence of prescription as to the holding, and remitted to the Ordinary to hear parties as to the feu-duties.

On the 16th November 1768, “refused a reclaiming petition, and adhered.”

Act. A. Lockhart. Alt. A. Dundas. Reporter, Auchinleck.

Diss. Alemore, Elliock.

Non liquet, Kaimes.