Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.

Christie, Petitioner for a Warrant from Chancery for Infeftment by the Crown - Supplendo Vices.

Date: 14 December 1776

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The estate of Elphinstone was sold by the late Lord Elphinstone to certain trustees for Lord Dunmore, who expede no public infeftment, but were infeft base upon the precept. A vassal of the estate, having served himself heir in special to his predecessor, was desirous to complete his title by infeftment. But finding the trustees not infeft public, he raised against them a special charge, in terms of the Act 1474, c. 58, and a summons of tinsel of the superiority; in which he called the trustees and officers of state, the Crown being next superior; and having obtained decreet in foro, finding, That Lord Dunmore's trustees had forfeited the superiority for life, and that he was entitled to hold of his next immediate superior, the Crown, he applied to the Chancery for a precept for that purpose, directed to the Sheriff, for infefting him. The Chancery demurred, without a warrant on a bill to the Ordinary on the Bills authorising them to issue such precept. He applied therefore by bill, 14th November 1776. The Lord Alva, Ordinary on the Bills, having reported it, the Lords ordered the point to be stated in a memorial. At first view there appeared a defect in the decreet of tinsel of the superiority; for, as Lord Dunmore's trustees never were infeft public, the application for the infeftment to the heir of the vassals ought to have been made to Lord Elphinstone, with whose heir the feudal right of the superiority still remained. They ordered this point particularly to be stated in a memorial; and, on advising the memorial for Christie, ex parte, they refused the warrant. They were of opinion that the Act 1474 did not apply to singular successors, but to the heirs of the former superiors; and, although Mr Erskine seems ambiguous upon that point, see Inst., p. 585, yet Sir Thomas Hope was clear, see M. P. p. 208. They differed as to the effect of the base infeftment: Some thought it gave a title to the superiority, if the vassal consented that a superior should be interposed. Lord Braxfield said he thought it gave no title. And, therefore, as Lord Elphinstone's heir was not proceeded against, nor party to the declarator of tinsel, that the warrant fell to be refused.