Scottish Court of Session Decisions

Prior to 1719, Alexander Inglis held, the estate of Murdoston or Murdieston, in fee-simple, of the Duke of Hamilton. The superiority was part of the entailed estates of the dukedom. In February, 1719, Alexander Inglis executed a disposition and deed of tailzie of these lands in favour of Alexander Hamilton, and others. On the death of Inglis, Alexander Hamilton, taking the name of Alexander Hamilton Inglis, made up titles and was infeft under the entail. He left a family of sons, named, in the order of their seniority, Alexander, Gavin, James, and Walter. Alexander made up titles and was infeft as heir of tailzie in 1772. In August, 1772, Douglas Duke of Hamilton, who stood infeft in the superiority or dominium directum of Murdieston, as heir of entail of the Dukedom of Hamilton, expede, upon his own procuratory, a charter of resignation thereof, and of other lands and superiorities, in favour of himself and his heirs of entail in the dukedom. On September 22, 1772, the commissioners of the Duke executed a disposition, narrating that they had been specially appointed “to sell and dispone to any vassals,” holding under him as heir of entail, “the respective superiorities over such of their lands, in terms of 20 Geo. II. c. 50, and that at such prices as could be agreed upon.” The disposition then, for a price of £305 sterling, paid by Alexander H. Inglis to William Nairne, advocate, as trustee under the act, disponed and sold the lands of Murdieston, with absolute warrandice against the Duke and his heirs of entail; but excepting always the vassal's feu-right from such warrandice. The Duke and his heirs of entail were taken bound to infeft Alexander H. Inglis; and the crown-charter, and unexecuted precept were assigned to him for infefting himself. Alexander II. Inglis took no infeftment, but, on September 24, 1772, he, “in consideration of a certain sum of money,” and for “other onerous causes,” disponed and sold about one-half of the superiority to James, afterwards General Inglis Hamilton, his next younger brother but one, “in liferent, during all the days of his lifetime, and to the said Douglas Duke of Hamilton and Brandon, and his heirs and assignees whatsomever, in fee.” The deed contained an obligation “to infeft and sease the said General James Hamilton in liferent, and the said Duke and his foresaids in fee, to be holden by them of my superiors thereof in the same manner, and as I could have done myself.” For the purpose of such infeftment, the deed, which had previously narrated the state of Alexander H. Inglis's own right, assigned to General Hamilton and the Duke, in liferent and fee respectively, the disposition by the Duke's Commissioners, and the assignation of the Crown-charter and precept, surrogating the General and “the Duke and his foresaids, for their respective rights of liferent and fee, in my full right and place of the premises for ever.” The deed also assigned to them not only the writs, &c., “but also all dutys payable out of the said lands to the superior thereof, and all casualtys attendant on the right of superiority of the same, or prestable by me as vassall therein, and which shall become due and payable for and furth of the said lands, from and after the term of Martinmas last, for the current cropt and year 1772, and all cropts and years thereafter, with full power to the said General James Hamilton, during his life, to enter and receive all vassalls in the said lands, and receive the composition due by law therefore, fully and freely in all respects, without the consent of the said Duke and his foresaids, the fiar of the said lands.” The warrandice was from fact and deed. On September 24, 1772, Alexander H. Inglis executed a similar disposition of the remainder of the superiority of Murdieston to Walter, his next brother after the General, in liferent, with power to enter vassals, and to the Duke, his heirs and assignees in fee. The particular lands disponed to Walter were described as “Easter and Wester Hills of Murdieston” &c. Sasine was taken on each conveyance, on the same day, September 24, in favour of James and Walter, respectively, in liferent, and of Duke Douglas in fee. The instrument narrated the Crown-charter to the Duke and his heirs of entail, and the progress already stated; it also narrated the clause empowering the liferenter to enter vassals, and the precept contained in the Crown-charter for giving infeftment, “sed cum et sub conditionibus, &c., clausulis irritantibus et resolutivis supra mentionat. secundum formam et tenorem antedict. cartæ nostræ” &c. The sasines were duly recorded on October 1, 1772. Walter, and afterwards Alexander H. Inglis, died without issue; the latter in 1786. Duke Douglas thereon, as infeft in the fee of the superiority of Murdieston (now freed of Walter's liferent, to the extent of one half), and General Hamilton as infeft in the superiority of the remaining half, in liferent, with power to enter vassals, concurred in granting a precept of clare constat to Gavin Inglis Hamilton, the next brother to Alexander, as his heir of tailzie, under which Gavin was infeft in June 1787. Duke Douglas died in 1799. Duke Archibald who succeeded, was not heir of line to Duke Douglas. His Grace expede a general service as heir-male of tailzie to Duke Douglas, under the charter 1772, which was granted to Duke Douglas and the heirs of entail. Duke Archibald then, in April, 1801, took infeftment in the superiority of Murdieston under the precept in that charter, as if it were still unexecuted. Gavin Inglis Hamilton died in 1802, without issue. His next brother General Inglis Hamilton, thereon, as liferent superior of one-half of Murdieston, with power to enter vassals, granted a precept of clare constat in his own favour, as to that half of the lands. In the precept, he set forth that he was superior “conform to disposition and assignation in favours of me in liferent, and to the deceased Douglas Duke of Hamilton and Brandon, his heirs or assignees in fee, granted by the also deceased Alexander Inglis, formerly of Murdiestoun, dated the 24th day of September, 1772 years, and our infeftment following thereon.” The precept farther bore that Gavin died infeft; that the General was next heir of tailzie in the lands; that the lands “are holden immediately of and under me in liferent, and the said deceased noble Duke, his heirs or assignees in fee, excepting the said lands disponed to the said Walter Hamilton.” Infeftment was duly taken under this precept, on June 14, 1802. On June 15, General Inglis Hamilton, in respect that the entail of Murdieston contained no prohibition against altering the succession, disponed the lands to a new series of heirs. This new deed of tailzie set forth that the granter was heritable proprietor of that portion of the lands to which his title was made up as already mentioned, and that he was “apparent heir of the deceased Gavin Inglis Hamilton” as to the remainder, and he specially bound himself to make up titles to it, and to infeft the heirs under the new tailzie. On June 30th, he obtained a brieve from Chancery for serving himself “legitimug et proprinquior hæres in speciali, et lineæ, dict, quond. Gavini Inglis Hamilton, fratris sui immediate senioris.” The publication of the brieve was made, as for serving the General “heir in special, and of line” to his deceased brother. The retour of the special service, 17th September, 1802, bore that Gavin Hamilton died infeft in “illis partibus terrarum de Murdieston, vocat. Easter and Wester Hills de Murdieston,” &c., conform to precept of clare constat by General Hamilton and Duke Douglas, for their respective interests of liferent and fee, but with and under the conditions, provisions, &c, of the entail 1719; and that the General “est immediate junior frater germanus dicti Gavini Inglis Hamilton, defuncti, et propinquior et legitimus hæres talliæ illi, in terris et aliis suprascript.” On October 9, 1802, the General raised letters of horning narrating that on September 17, 1802, he had been served “heir in special, and of line,” to Gavin, in these parts of the five-pound lands “of Murdieston, called Easter and Wester Hills of Murdiston,” &c.; that the whole five-pound lands were held of Duke Douglas “and his heirs and successors” in blench farm; but under the provisions of the entail 1719; that Lord Stanley and others were respectively the heir of line, and the trust-dispoees of Duke Douglas, and either they, or the present Duke Archibald, “are now superiors of the said lands, and ought and should receive” General Hamilton as vassal, &c.; but that they refused or delayed to obtain themselves infeft in the superiority “as heirs to the said deceased Douglas Duke of Hamilton, &c., who died last vest and seased therein.” The will of the letters was to charge these several parties to obtain themselves infeft as heir to Duke Douglas in the superiority of Murdieston, and to infeft General Inglis Hamilton as heir to his brother Gavin, conform to the retour of his service. A charge was given under these letters to Duke Archibald.

On November 27, 1802, Duke Archibald granted a precept of clare constat to General Inglis Hamilton, setting forth that Gavin Hamilton died infeft “in these parts of the five-pound lands called Easter and Wester Hills of Murdieston,” &c., but under the provisions of the entail 1719; that General Inglis Hamilton “is the immediate younger brother of the said deceased Gavin Inglis Hamilton, and nearest lawful heir to him in the foresaid lands, conform to his special service before the Sheriff-substitute of Lanarkshire, dated the 17th day of September last, and duly retoured to chancery;” “that the lands are holden of and under me, my heirs and successors, in free blench farm,” &c., and therefore requiring infeftment to be given to General Inglis Hamilton, “as heir aforesaid of all and whole the foresaid parts of the five-pound land of Murdiston, called Easter and Wester Hills of Murdiston,” &c., but always under the provisions of the entail 1719.

Infeftment was given under this precept on November 29, 1802, and the following entry was made in the minute-book of particular register of sasines, at Hamilton, of the presentment of the instrument for registration:—“2d December, 1802, betwixt the hours of one and two P. M. General James Inglis Hamilton of Murdiestoun, as nearest and lawful heir to the deceased Gavin Inglis Hamilton, Esq. last of Murdiestoun, his brother, in all and whole these parts of the five-pound land of Murdiestoun called Easter and Wester Hills of Murdiestoun,”—but with and under the “provisions, &c.” of the entail 1719. “The sasine is dated 29th November last, produced by the said James Telfer. (Signed) Archd. Burns. (Signed) J. Telfer.” This entry was made in the regular order in the minute-book, and the sasine was engrossed in the regular order of the entry in the minute-book. On the back of the instrument of sasine the following certificate was indorsed:—“At Hamilton, the second day of December, seventeen hundred and eighty-two years, the sasine written on this and the two preceding pages, was produced by James Telfer, writer in Hamilton, and registered said day in the 153, 154, and 155 leaves of the thirtieth book of the Particular Register of Sasines, &c. kept at Hamilton, for the shire of Lanark, by me, depute-keeper of the said Record, this second day of December, and year foresaid. (Signed) Arch. Burns.”

General Inglis Hamilton died in 1803, and Colonel Hamilton, the institute under his deed of tailzie, took infeftment in that character. He died in 1815, without issue, and the late Sir Alexander Inglis Cochran was served next heir of tailzie to him in November, 1815.

Duke Douglas had left a general disposition of all his lands and heritages to trustees. They divested themselves in favour of the beneficiaries under the trust, who sold and disponed to Sir Alexander Inglis Cochran the superiority of Murdieston, as being embraced under the conveyance to them. Duke Archibald in 1816 raised a reduction-improbation and declarator against the heir of line of Duke Douglas,—the Duke's trustees,—the beneficiaries under the trust—the heir of the deceased William Nairne, advocate (afterwards Lord Dunsinnan), who had been named trustee to receive the price paid by Alexander Inglis for the conveyance 1772—and Sir Alexander Inglis Cochran. The summons set forth that the disposition by Duke Douglas to Alexander H. Inglis, in 1772, the two dispositions by Alexander H. Inglis to James and Walter respectively, in liferent, and to Duke Douglas in fee; and the infeftments thereon, “were granted in defiance and contravention of the said deed of entail (meaning the entail of the Hamilton estates), and were therefore null and void; at least it ought and should be found and declared, that the whole of the foresaid dispositions and instruments of sasine taken in favour of the said Duke and his heirs and assignees in fee, descended and belonged to the pursuer, as his heir of entail in the said lands, and with and under the provisions, clauses irritant and resolutive, and others contained in the said deed of entail, and not to the trustees and heirs whatsoever of the said Douglas Duke of Hamilton and Brandon, in fee simple.” The summons concluded that the said whole writs should be reduced and declared null and void, “or otherwise and separately, it ought and should be found and declared, by decree aforesaid, that although the foresaid disposition appeared to have been granted under the foresaid Act of Parliament, yet the foresaid Alexander Inglis, the vassal, having executed dispositions of the superiorities so conveyed to him in favour of the persons before narrated in liferent, and to the said Duke and his heirs and assignees whatsoever in fee, the simulate and collusive nature of the transactions above libelled was from thence apparent, and the said dispositions and iufeftments taken in favour of the said Duke and his heirs and assignees in fee, could transfer no real right and interest in the aforesaid lands and superiorities to his said trustees and heirs whatsoever, or those deriving right from them; but the said infeftments must have been held to have been taken in favour of the said Duke and his heirs of entail, in respect they proceeded upon the foresaid dispositions by him to his vassals, and re-conveyances by them to him, and assigned to him the unexecuted precept of sasine contained in the foresaid charter of resignation, under the Great Seal, of the estate and dukedom of Hamilton, comprehending the lands and others above described, in favour of his Grace and the heirs-male of his body; whom failing, the other heirs of tailzie specified and contained in the aforesaid deed of entail, made and executed by the said William and Anne, Duke and Duchess of Hamilton, but always with and under the conditions, provisions, restrictions, reservations, clauses irritant and resolutive, contained in the said deed of tailzie, and in the foresaid charter itself, in favour of the said Duke: And the said writs being so reduced and set aside; or otherwise it being found and declared that they transferred no real right to the foresaid lands and superiorities to the said Duke and his heirs and assignees, but that the right thereto still remains vested in the said Duke and his heirs of entail, it ought and should be found and declared, by decree foresaid, that the pursuer had the only good and undoubted right and title to the estate and dukedom of Hamilton, comprehending therein, among others, the lands and superiorities above narrated, notwithstanding the said nominal and fictitious alienations thereof, and to uplift the rents, maills, feu-duties and casualties of superiority due by the vassals in the said lands, from and since the term of Whitsunday, 1799, when his entry to the said estate commenced, upon the death of the said Douglas Duke of Hamilton and Brandon, his predecessor, and that none of the said defenders had ever any right or title to any part of the said rents and duties, and that the titles before narrated of the said pursuer (i. e. of Archibald Duke of Hamilton), viz. the said charter of resignation of the said lands and dukedom in favour of the said Douglas Duke of Hamilton and Brandon, and his heirs of entail, dated the 6th day of August, 1772, with the retour of the pursuer's general service, as heir-male and of tailzie to him, dated the 11th day of March, 1801, and the instrument of sasine following upon the precept contained in the said charter, and on the said retour in the pursuer's favour, dated the 23d March, and registered the 14th of April, 1801, formed and constituted the only good right and title to the said lands and dukedom, comprehending the whole lands and superiorities above narrated, notwithstanding the fraudulent and fictitious alienations thereof before specified, and the said defenders ought and should be decerned and ordained, by decree foresaid, to cease and desist from troubling and molesting the pursuer in the peaceable possession of the said lands and superiorities.”

Appearance was made for Sir Alexander Inglis Cochran, and for the beneficiaries under the trust, who lodged defences. On June 3, 1817, the Lord Ordinary (Pitmilly) repelled the defence of prescription, pleaded in support of the infeftments of September 24, 1772, and “reduced, retreated, rescinded, cassed, and annulled the foresaid disposition made and executed by the said Duke and his commissioners, particularly before narrated, with the whole conveyances thereof, and instruments of sasine, and other deeds that have since followed thereon, the foresaid trust-disposition, in so far as concerns the said lands, and the said contract entered into, and disposition granted or to be granted in favour of the said Sir Alexander Inglis Cochran, and any charters or infeftments to follow thereupon; and decerned and declared, and hereby decerns and declares, the same to have been from the beginning, and to be now and in all time coming, void and null, of no avail, force, strength, or effect in judgment or outwith the same; and found and declared, and hereby find and declare, that although the foresaid disposition appears to have been granted under the foresaid Act of Parliament, yet the foresaid Alexander Inglis, the vassal, having executed dispositions of the superiorities so conveyed to him in favour of the persons above narrated in liferent, and to the said Duke and his heirs and assignees whatsoever in fee, the simulate and collusive nature of the transactions above libelled is from thence apparent; and the said dispositions and infeftments, taken in favour of the said Duke and his heirs and assignees in fee, can transfer no real right or interest in the foresaid lands and superiorities to his said trustees and heirs whatsoever, or those deriving right from them, but the said infeftments must be held to have been taken in favour of the said Duke and his heirs of entail, in respect they proceeded upon the foresaid disposition by him to his vassal, and reconveyance by him to his Grace, and assigned to him the unexecuted precept of sasine contained in the foresaid charter of resignation under the Great Seal of the estate and dukedom of Hamilton, comprehending the lands and others above described, in favour of his Grace, and the heirs-male of his body, whom failing, the other heirs of tailzie specified and contained in the foresaid deed of entail made and executed by the said William and Anne Duke and Duchess of Hamilton, but always with and under the conditions, provisional restrictions, reservations, clauses irritant and resolutive, contained in the said deed of tailzie, and in the foresaid charter itself, in favour of the said Duke, and found and declared, and hereby find and declare, that the pursuer has now the only good and undoubted right and title to the estate and dukedom of Hamilton, comprehending therein, among others, the lands and superiorities before narrated, notwithstanding the said nominal and fictitious alienations thereof, and to uplift the rents, maills, feu-duties, and casualties of superiority due by the vassals in the said lands from and since the term of Whitsunday, 1799, when his entry to the said estate commenced, upon the death of the said Douglas Duke of Hamilton and Brandon, his predecessor, and that none of the said defenders ever had any right or title to any part of the said rents and duties, and that the titles before narrated of the said pursuer, viz. the said charter of resignation of the said lands and dukedom, in favour of the said Douglas Duke of Hamilton and Brandon, and his heirs of entail, dated the 6th day of August, 1772, with the retour of the pursuer's general service as heir-male and of tailzie to him, dated the 11th of March, 1801, and the instrument of sasine following upon the precept contained in the said charter, and on the said retour in the pursuer's favour, dated the 23d day of March, and registered the 14th day of April, 1801, form and constitute the only good right and title to the said lands and dukedom, comprehending the whole lands and superiorities above narrated, notwithstanding the fraudulent and fictitious alienations thereof before specified; and decerned, and hereby decern accordingly,” &c. On June 26, 1817, and February 3, and March 5, 1818, representations against this judgment were refused. A reclaiming petition and additional petition to the Inner House were boxed by the defenders, in April, 1818; answers were ordered on May 28, and were lodged by Duke Archibald on December 10, 1818. Before these were advised, the Duke died in February 1819. In June following, the defenders lodged a minute, stating that “they have now resolved to acquiesce in Lord Pitmilly's interlocutor, and to withdraw from farther litigation upon the question. This they feel it their duty to state to your Lordship, to prevent the Court having the trouble of perusing the petition and answers, and that your Lordships may strike the case from the roll, as it stands for advising upon Tuesday the 15th of June current.” A minute was afterwards put in by counsel, sisting Alexander Duke of Hamilton as pursuer, in the room of his deceased father, Duke Archibald. No interlocutor was pronounced, holding Duke Alexander to be sisted. On June 11, 1819, the Court pronounced this interlocutor:—“Of consent, adhere to the interlocutor complained of, and refuse the desire of both petitions.” On November 27, 1819, expenses were modified and decerned for. The decrees were afterwards extracted, and the extract bore, that, after the death of Duke Archibald, Duke Alexander was sisted.

In July, 1820, Sir Alexander Inglis Cochran obtained from Duke Alexander a charter of confirmation of the infeftment of Colonel Hamilton, and a precept of clare constat for infefting himself as nearest and lawful heir of tailzie and provision to Colonel Hamilton Sir Alexander was thereon infeft. He died in 1832; and his son, Sir Thomas John Cochran, obtained a precept of clare constat from Duke Alexander as heir of tailzie and provision to his father, and was thereon infeft.

Some time after the death of Sir Alexander, an action of reduction of the decrees of June 11, and November 27, 1819, was raised by Duke Alexander, for the purpose of obviating any alleged irregularity as to his Grace not having been duly sisted, when they were pronounced. The action concluded for reduction, to the effect of wakening and reviving the original process, transferring it against the heir of the now deceased Sir Alexander Inglis Cochran, and having decree pronounced in the same terms as those of June 11, and November 27, 1819. On July 10, 1835, the Court, having already pronounced decree of reduction as concluded for, farther wakened and transferred as also concluded for, conjoined the action with the original action of reduction, and of new having advised the petition and additional petition given in, in the original action, with the answers thereto, and the minute for the defenders, adhered to the interlocutor complained of in the petitions, and refused the desire thereof.

In 1833, Sir James Gibson-Craig of Riccarton, as adjudging creditor of Dr David Ramsay, physician in Edinburgh, the heir of entail of the dominium utile of Murdieston, under the tailzie 1719, raised a reduction of the precept of clare constat by General Inglis Hamilton to himself, and the sasine thereon; the brieve and the retour of service of the General to his brother Gavin; the precept of clare constat by Duke Archibald to the General, and sasine thereon; the General's deed of tailzie, the sasine thereon, and the several writs and sasines under which titles had been made up by the succeeding heirs-substitute of that tailzie, as already mentioned.

Defences were lodged for Sir Thomas John Inglis Cochran; a record was made up, and cases were ordered.

Pleaded by the Pursuer.—

It was under the new entail by General James Inglis Hamilton in 1802 that the defender possessed his whole right, and if that deed were invalid, the right to the lands of Murdieston was in Dr Ramsay, the heir under the old entail 1719, and had been transferred, by adjudication, to the pursuer. On examining the state of the title of General Hamilton it would appear that it was altogether inept, and that the new entail by him was therefore ineffectual, as it flowed a non habente potestatem. The title had been made up to one-half of the lands, by precept of clare from himself, as liferent superior; and to the other half, by precept of clare from Duke Archibald, as liar in the superiority. Each of these titles should be separately examined.

I. As to the half in which General Hamilton was liferent superior.

(1.) Duke Douglas obtained the crown-charter of 1772, in favour of himself and the heirs of the Hamilton entail. His disposition to Alexander H. Inglis in fee-simple, containing an assignation of the unexecuted precept, was unwarrantable, the precept being limited to an infeftment of the heirs of the Hamilton entail. ¹ And the allegation that this was warranted by narrating the 20 Geo. II., c. 50, authorizing the sale of superiority to a vassal, was irrelevant; at least in the face of the real evidence, which demonstrated that the transaction was merely a colourable and fictitious use of the statute, since Alexander H. Inglis, the vassal, immediately redisponed the fee to the superior himself, but conveyed the liferent of the superiority in two portions to his brothers James and Walter, respectively. The infeftment of James in liferent, and Duke Douglas and his heirs whomsoever in fee, as to the portion of the superiority now in question, was therefore inept, being taken under the precept in the Crown-charter 1772, which only warranted an infeftment to the heirs of the Hamilton entail.—And separately, the decree of June 11, 1819 (subsequently renewed on July 10, 1835), which was binding on the defender, who was a party to the process, expressly annulled the conveyance by the commissioners of Duke Douglas to Alexander H. Inglis, and the conveyance by Alexander H. Inglis to General Inglis Hamilton, and the Duke, and whole infeftments thereon; and declared the whole transactions simulate and collusive. It followed, therefore, that General Inglis Hamilton, a conjunct and confident party in all these transactions, never had a real right of liferent of the superiority, and could neither grant an effectual precept of clare constat to his brother Gavin, as he did in 1786, or to himself in 1802. His infeftment under such precept as heir to his brother Gavin (especially as the hereditas jacens was not in Gavin, but in the preceding brother Alexander), was wholly inept.

(2.) A superior could not effectually grant a precept of clare constat to himself, especially as heir of tailzie, without previously expeding a service in his favour, as heir to the vassal last infeft; because such precept, if not so corroborated, was the mere assertion of a superior in his own favour, which was entitled to no regard.

(3.) Even if the infeftment was good so long as not reduced, it was only an infeftment in a liferent by constitution. But a liferenter by constitution had not the power of entering vassals, ² and could not, consistently with feudal principles, receive such a power, excepting only as the mandatary or commissioner of the fiar-superior. But both Duke Douglas and Alexander H. Inglis died before 1802, when General Hamilton granted the precept of clare constat to himself, so that any power he might at first have possessed as a mandatary or commissioner, had fallen. On that ground, also, his infeftment under that precept was inept.

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¹ Magistrates of Musselburgh, February 21, 1804 (15038.)

² Henderson, February 19, 1836 (ante, XIV., 540.)

(4.) As Alexander H. Inglis, the immediate author of General Hamilton, possessed a right which was merely personal, ¹ he could not confer upon a liferenter, constituted by himself, the power of entering vassals, even if, by being infeft, he could have done so. But such power was conferred, or attempted to be conferred, by him alone; and, on this last and separate ground, the General's infeftment was inept.

(5.) The three last-mentioned pleas were not at all affected by any plea of alleged prescription as having fortified the liferent infeftment of General Hamilton. But even as to the first, such plea was wholly unfounded. Both that infeftment, and the infeftment of Duke Douglas, as fiar, flowed immediately from the conveyance of Alexander H. Inglis, and mediately from the prior conveyance of the commissioners of Duke Douglas to Alexander Inglis, But both of these writs, with the infeftments following thereon, were set aside by the reduction of Duke Archibald, which was raised in 1816, and the plea of prescription was then stated and repelled. The liferenters' heirs were not called in that action, because both the liferents of the General and his brother Walter had become extinct. But Sir Alexander Inglis Cochran was called, to defend the fee of the superiority which he had purchased from parties deriving right from Duke Douglas. The fee was conveyed to the Duke, and the liferent to the General, in the same deed; both rights were parts of one and the same right conveyed by the commissioners of Duke Douglas to Alexander H. Inglis, which right was, without qualification, cut down and annulled as simulate and collusive. Neither Sir Alexander Inglis Cochran, nor the defender, his representative, could effectually plead prescription in support of the liferent right of General Inglis Hamilton, after the source from which it was derived had thus been cut down in a question with Sir Alexander. And, separately, although forty years had run from the date of the General's infeftment, the objection was, that its warrant was inept; and it was open to look at its warrant. The infeftment was taken under the precept in the Crown-charter to Duke Douglas and his heirs of entail. The warrant for infefting the General was his right to that precept under the conveyance from Alexander H. Inglis, and the conveyance by the commissioners of the Duke to Alexander H. Inglis. But as the conveyance to Alexander H. Inglis had been unqualifiedly reduced in a competent action, it could not be pleaded in support of the General's liferent infeftment.

II. As to the half of the lands, to which Duke Archibald's precept of clare constat applied.

(1.) The infeftment of Duke Archibald in the superiority, in 1801.

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¹ 2 Ersk. 9, 42—2 Mackenzie, 9, 38.

was taken under the precept in the charter 1772. That precept stood exhausted, at the time, by the recorded infeftment of the deceased Duke Douglas in fee, and the deceased Walter Inglis in liferent. Even if these infeftments were open to reduction, still, while unreduced, the precept was exhausted, and a second infeftment under it was null. And, moreover, the right to the precept was not carried by the general service of Duke Archibald, which could only take up an open and unexhausted precept. Duke Archibald was, therefore, not duly infeft when he granted the precept of clare constat, and the infeftment under that precept was consequently inept. ¹

(2.) General Inglis Hamilton died before any attempt was made to cure the defects in his title, and after his death no subsequent proceedings could make up a title in him. But, farther, Duke Archibald also died without taking the requisite steps for curing his own title, if it could be cured. The reduction which he raised of the writs and infeftments of 1772, was not brought to any final issue before his death. The Lord Ordinary had pronounced a decree of reduction, but it was kept open by a reclaiming petition, followed by an order for answers pronounced by the Inner House, when the Duke died. The Duke, therefore, died before habilitating the infeftment which he took in 1801, and whatever subsequent steps were taken by his successor, could have no effect in curing the title which alone was in him, while he lived.—But, separately, the decree of reduction and declarator, even as pronounced by the Lord Ordinary, was inept for the purpose for which it was said to be intended. It contained an express finding that the infeftments taken by Duke Douglas in 1772, “must be held to have been taken in favour of the said Duke and his heirs of entail;” and if so, the precept was necessarily exhausted, so that the general service of Duke Archibald in 1801 could not, and did not, take it up. In either view Duke Archibald could not effectually grant the precept of clare constat to General Inglis Hamilton.

(3.) Independently of these pleas, the sasine on the precept was ineffectual, in respect that the certificate of registration did not bear the true date of registering the sasine. The sasine was dated November 29, 1802. The certificate of registration on the back of it was 2d December, 1782; and besides, the first four letters of the word December were written on an erasure. This was as fatal as if no certificate at all had been there indorsed; which, however, would have invalidated the sasine, considering the provisions of 1617, c. 16. This plea was supported by the view taken by the Lord President in the case of Drummond, ² followed up, as it had been, by the case of Adam. ³

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¹ Syme, June 16, 1801 (Dicty. voce Superior and Vassal, Appx. No. 3.)

² June 24, 1809 (F.C.)

³ June 19, 1810 (F.C.)

(4.) The title of General Hamilton, confessedly, was not made up, as to the half of the lands now in question, at the date of executing his entail. But that entail was a gratuitous deed; and, as subsequent accretion operated only where the granter of the deed was bound in absolute warrandice, there was no room for its application here. ¹

(5.) The brieve of service of General Inglis Hamilton was limited to the character of “heir in special, and of line” to Gavin; and the publication was conform to this. But the retour was in the character of heir of entail to Gavin, which was wholly unwarrantable. And as the precept of clare constat bore to be conform to the service, it was inept if the service was irregular.

(6.) The feudalized investiture under the tailzie 1719, could not be effectually altered, especially by a gratuitous deed, without first resigning the lands into the hands of the superior. A mere disposition by the vassal, though confirmed by the superior, could not effectually extinguish the previous tailzie, and change the investiture. ²

Pleaded by the Defender—

I. As to the half of the lands in which General Hamilton was liferent superior.

(1.) The conveyance by Duke Douglas to Alexander H. Inglis, especially as it bore to be under 20 Geo. II. c. 50, was perfectly effectual while unreduced; and equally so was the conveyance of Alexander II. Inglis to General Hamilton in liferent and Duke Douglas in fee, because Alexander H. Inglis held a right in fee-simple which he might dispone at pleasure. In particular, a precept to infeft, though contained in a deed of entail, was still a precept to infeft in the actual fee, only under certain burdens and conditions. If onerously assigned to a third party, such party could take effectual infeftment; at least the infeftment would be good to all effects, so long as not reduced by the heirs of entail. The General was infeft under the precept in the crown-charter, in 1772, and his infeftment was standing unchallenged not only when he granted the precept of clare constat to his brother, and immediate predecessor, Gavin in 1786, but also when he granted the precept of clare to himself in 1802. A stranger vassal, then requiring infeftment, was entitled to rely on the General's standing investiture of the superiority which he saw from the records, and would have been safe to take infeftment from

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¹ 2 Ersk. 7, 3, and 4—3 St. 3, 1—1 Bell, 698.

² Durham, Nov. 24, 1802 (11220)—Snodgrass, Dec. 16, 1806 (Dicty. voce Service of Heirs, Appx. No. I.)—Zuille, Mar. 4, 1818 (F.C.)—Molle, Dec. 13, 1811 (F. C.)—2 St. 3, 4, 3.

the General, whatever steps might afterwards be adopted against the General's title, for challenging it. But the General himself, being the vassal, was equally entitled to take infeftment in the dominium utile which would remain good, whatever subsequent steps might be adopted to challenge his right of superiority.

(2.) There was neither principle or authority for holding that, where a superior succeeded as heir to his vassal, whether under a tailzie or not, he could not effectually grant a precept of clare constat in favour of himself, without first expeding a service as heir to his vassal. Such precept was always the mere assertion of the superior; but, where the assertion made was consistent with the fact, it was as available to himself, as it would have been to any other vassal.

(3.) Even if the General only held a liferent by constitution (which might perhaps be disputed), still it was a liferent with an express power to enter vassals, conferred on him as part of the estate of superiority which was conveyed to him for life. A liferenter by reservation had such a power by implication; and though it might not be implied, where not expressed, in the case of a liferent by grant, yet where it was expressed, it was as effectually enjoyed by such a liferenter as it could be in the case of a liferenter by reservation. ¹ And so it had been decided. ²

(4.) Alexander Inglis had a full personal right to the whole superiority. It was competent to him to have conveyed the fee to one party, and to have reserved a liferent to himself with power to enter vassals, which would have been good so soon as he took infeftment. It was equally competent to convey the fee to one party, and the liferent with the special power of entering vassals to another, which power would equally become effectual to such disponee, so soon as he took infeftment; as the General had done,

(5.) The liferent infeftment of the General was fortified by the long prescription. The action of reduction was not raised till 1816, before which the term of 40 years was run. And that action was not directed against the General's representatives, so that whatever were its conclusions, the liferent-right, as granted to the General, could not be affected by them. Accordingly, they merely cut down the fee of Duke Douglas, so far as it prejudiced the heirs of the Hamilton entail and the title made up by Duke Archibald, in 1801, but no farther. The liferent infeftment of the General had, therefore, never been effectually challenged, and the precept of clare constat granted by him to himself in 1802, was valid and effectual,

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¹ 2 Ersk. 9, 42—Waddell, Jan. 21, 1812 (F.C.)—Swinton, Feb. 1, 1814 (F.C.)—Lady Forbes, Feb. 18, 1762 (9931)—Duke of Roxburgh, June 25, 1818, (F.C.)

² Redfearn, Mar. 17, 1816 (F.C.)

II. As to the half of the lands to which Duke Archibald's precept of clare constat applied.

(1.) Duke Archibald expede an actual infeftment as superior in the lands. That was a good infeftment from its date, provided that the infeftment of Duke Douglas were ever cleared away; and the general service of Duke Archibald had also effectually taken up the precept in the charter 1772, on the same condition.

(2.) The reduction and declarator raised in 1816, had that effect. The plea of prescription was repelled, and a decree of reduction was pronounced by the Lord Ordinary on June 3, 1817, before the Duke's death. Although that was reclaimed against, a minute was lodged by the reclaimers, before the cause was advised, withdrawing all opposition, That brought matters to the same point as if the interlocutor of the Lord Ordinary had been acquiesced in from the first. And the subsequent judgment by the Inner House, simply adhering to the Lord Ordinary's interlocutor, could not in any view prejudice the force of the Lord Ordinary's standing interlocutor. But, independently of this, as Duke Archibald was actually infeft, it was enough to validate his precept of clare constat, if proceedings had been adopted at any time, even after his death, which resulted in a declarator that his infeftment, as taken, was a true and valid infeftment all along, and that those previous proceedings by Duke Douglas, which were said to be incompatible with it, were annulled and set aside. These proceedings were actually adopted, either when the judgment of the Inner House was pronounced on June 11, 1819, or at least in the conjoined reduction, insisted in by Duke Alexander, for obviating any objection as to sisting himself in the first action, and in which decree was pronounced on July 10, 1835. The decree in the reduction was, from its tenor, effectual to validate Duke Archibald's right. It not only annulled all the attempted alienations of the fee of superiority in 1772, but specially declared that the titles of Duke Archibald, viz. “the charter of resignation of the said lands and dukedom, in favour of the said Douglas Duke of Hamilton and Brandon, and his heirs of entail, dated the 6th day of August, 1772, with the retour of the pursuer's general service as heir-male and of tailzie to him, dated the 11th of March, 1801, and the instrument of sasine following upon the precept contained in the said charter, and on the said retour in the pursuer's favour, dated the 23d day of March, and registered the 14th day of April, 1801, form and constitute the only good right and title to the said lands and dukedom, comprehending the whole lands and superiorities above narrated, notwithstanding the fraudulent and fictitious alienations thereof before specified.”

(3.) By 1693, c. 14, establishing the minute-book, followed by 1696, c. 18, the importance of the attestation on the instrument of sasine was done away with. The minute-book and the record became the only essential evidence as to the date of recording; and, in this case, the sasine was regularly entered in the minute-book, and was also entered in the record, in the due order of the minute-book, A mere clerical error in the attestation was therefore immaterial; and there was nothing in the cases relied on by the pursuer to affect this plea.

(4.) In the entail 1802, General Hamilton, on the narrative that he had not yet made up a title to the half of the lands in question, expressly bound himself to do so. In implement of this obligation he obtained the precept of clare constat from Duke Archibald; and if that did not afford a good and unchallengeable infeftment until after the prior infeftment of Duke Douglas were cleared away, it was, on the principle of accretion, susceptible of being validated, as soon as Duke Archibald's own title was so, and that equally whether General Hamilton had died in the mean time or not. ¹ It had accordingly been duly validated, as soon as the title of Duke Archibald was so.

(5.) There was no material irregularity in the service expede by General Inglis Hamilton in 1802. But as the Duke's precept of clare constat required infeftment to be given to the General as heir under the provisions of the entail 1719, which was strictly correct, and as it might have been issued without any service at all, it was irrelevant to enquire whether the alleged error in the service existed or not. And, farther, the retour bore specially that the General was heir of entail to Gavin, under the entail 1719; and that retour was now fortified by the vicennial prescription.

(6.) A disposition and sasine by the vassal, duly confirmed by the superior, whether it was onerously or gratuitously made, was a common and effectual method of changing the existing investiture of an estate without executing any resignation.

After considering the cases, the Court allowed an argument at the bar, in which the defender chiefly insisted (1.) that as General Hamilton, in 1802, found Duke Archibald entered and infeft as superior in the lands, respecting which the Duke granted his precept of clare constat; and as Duke Archibald was the true superior; the General was safe to enter with the Duke, whether his title to the superiority had been regularly made up or not, ² and had not even a right to try the question with the Duke whether the title to the superiority was regular or not. And (2.) that, under the decree of the Lord Ordinary, pronounced before Duke Archibald died, the Duke had a jus quæsitum, and all the vassals holding

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¹ 2 Ersk. 7, 3.

² In support of this view the defender founded on the case of Wilson, Jan. 1805. not reported, but referred to by the Lord President from his notes; and also, at the bar, stated from the session papers.

under the Duke had a jus quæsitum; and farther, that both that decree and the subsequent proceedings proving Duke Archibald's title to the superiority, as made up in 1801, to be the only good title, operated retro, and had the same effect as if the infeftment of Duke Douglas had been cleared away before Duke Archibald's infeftment was taken.

The pursuer answered, (1.) That the fact that the Duke, who granted the precept of clare constat, was the true superior, was immaterial as founding a real right to the vassal, if the Duke was not also entered and infeft in the superiority. And there was no difference, in legal effect, between an irregular and incompetent entry and infeftment, and no entry and infeftment at all. The vassal had his remedy by treating such superior as not entered, charging him to enter, and on his failure, taking an entry from the Crown. (2.) The decree of the Lord Ordinary was kept open, and the effect of it suspended, until after Duke Archibald's death; so that a real title was never established in Duke Archibald at all.

The following opinions were then delivered.