Scottish Court of Session Decisions

Subject_1 SERVICE AND CONFIRMATION.

M'Lachlan
v.
Campbell of Skirvane

Date: 17 November 1752
Case No. No. 13.

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In a competition between these parties for the salmon fishing in the water of Add, upon mutual declarators, Skirvane produced a disposition in 1717 of the lands, inter alia, of Dunadd, with the salmon fishing and other fishings on the water of Add, by Lachlan M'Lachlan of that ilk, which was admitted to be intended of the superiority of the lands, which had been before feued, and the feu-rights expressly excepted, with infeftment on the disposition. Dunadd again produced a precept of clare constat to one of his predecessors by Lachlan M'Lachlan of that ilk (I suppose the same person) of these lands, and per expressum of the salmon fishing, but produced no charter nor ancient right nor no sasine on that charter, which were said all to be lost. In the Outer-House an act was pronounced for both parties to prove possession, and for Dunadd to produce his other rights. He proved possession to preserve his right, but as he produced no one infeftment we preferred Skirvane, 3d July last. But Dunadd reclaimed and produced further the extract of the sasine 1696 on the precept of clare constat. His petition with answers coming this day to be advised, the President was of opinion, that however the precept of clare and sasine might be good against the granter, yet it could not be good against singular successors deriving right from him even after the precept and sasine upon it, and that Skirvane was in this case preferable to Dunadd though he purchased from the granter of that precept more than 20 years after; which appeared to me very singular, and therefore it is I mark it. But the Court was of a different opinion and preferred Dunadd.