Spottiswood of Spottiswood, v. Copland of Collieston, and Others
Date: 19 December 1767 Case No. No 56.
Decided contrary to the above.
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The question occurred, upon the same species facti as in 4th February 1758, Spottiswood of Spottiswood contra Creditors of Nasmyth of Earlshaugh, No 55. p. 8000. where a vassal of the Abbacy of New Abbey was found entitled to hold of the Crown.
Here, however, the judgment was different; and Spottiswood prevailed in a declarator of superiority and non-entry, against Copland elder and younger of Collieston, and certain other vassals of the Abbacy.
Some time before, a similar action had been brought by Spottiswood against Burnet of Craigend, one of the vassals; and the interlocutor pronounced by the Lord Ordinary, in that case, will sufficiently point out the principles upon which the present question was decided.
‘Found, That as the charter from the Crown in favour of the pursuer, anno 1742, proceeds upon the narrative of the charter 1624, the signature 1641, the signature 1660, the declaration of Parliament 1695, and the decreet of the Court of Session 1740, that charter ought to receive the most liberal construction, in order to restore the pursuer to the full right and title of the lands and barony of New Abbey, &c. as the same stood in the person of Sir Robert Spottiswood, the pursuer's great-grand-father, in the 1634, when he resigned the same into the hands of the Crown, for a price that was never paid: Found, that by virtue of the charter 1624, and the act of dissolution 1633, Sir Robert Spottiswood was, in the year 1634, entitled to the superiority of the lands formerly held of the abbacy of New Abbey: Found, that the act 1690, declaring the superiorities which pertained to Bishops to belong to the Crown, ought not to be extended to the superiority of New Abbey, in respect that, by the declaration of Parliament 1695, it is declared, that the act 1662, restoring Bishops to their possessions, as in the year 1637, did not prejudge the pursuer's father: And therefore found, that the pursuer is entitled to the superiority of the defender's lands in question, which had confessedly been held of the Abbey of New Abbey; and that these lands are in non-entry.’
The interlocutor was altered upon a petition, and the Court found, ‘That James Burnet is entitled to hold his lands of the Crown.’ But, upon an appeal, this judgment was reversed, and that of the Lord Ordinary affirmed.
Mr Copland endeavoured to diversify his case from that of Craigend; but without success: And accordingly the Lords ‘repelled the defences, and decerned in the declarator.’
Act. Lockhart, David Dalrymple.Alt. Maclaurin, Crosbie.
Fac. Col. No 62. p. 302.
