Scottish Court of Session Decisions

Subject_1 Member Of Parliment

Campbell of Succoth
v.
- -

Date: 6 February 1754
Case No. No. 67.

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Mr Campbell of Succoth complained for refusing to enrol him, who had acquired a proper wadset that had been purchased in 1735 by the deceased Captain Campbell from Herbertshire, of lands partly property, partly superiority, valued L.410. It was objected, that a superiority could not be wadset. 2do, That it was not a proper wadset, for that in case any casualties of superiority fell he was accountable for them. 3tio, That the valuation of the property lands was only divided by a private meeting, Answered, A superiority may be wadset as well as any other right. To the 2d, That makes the right no worse than if the casualties had been discharged or gifted or reserved, which does not make the wadset improper. To the 3d, That that division was approved by a general meeting in 1753. Objected, 4to, That Herbertshire having acquired the property of these lands whereof he had wadset the superiority, he conveyed both property and superiority to Lady Forrester, who conveyed them to Forrester of Dunnovan, who is publicly infeft and in possession. Answered, That infeftment cannot hurt the complainer's prior infeftment whereof Lady Forrester was in the knowledge, as is proved by bonds granted to her by Herbertshire and Solicitor Haldane. The Court repelled the three first objections, but superseded the fourth till we should have evidence of possession. Herbertshire reclaimed, and then entered an appeal, which he was afterwards allowed to withdraw on paying L.40 of costs; and answers being put in with the proofs of possession, we adhered and repelled the objection of want of possession, and ordered him to be enrolled. And on a fresh appeal the judgment was affirmed in Parliament, April 1754. (See Dict. No. 8. p. 2439.)