Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by JAMES BURNETT, LORD MONBODDO.

Stirlingshire Election, - Archibald Campbell

Date: 6 March 1754

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[Fac. Coll. No. 105.]

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 subject-superior: 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.