Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 PRESCRIPTION - UNION - SASINE.
Subject_3 Vide supra, 13th December 1776.

James Scot
v.
John Bruce Stewart

Date: 10 August 1778

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[Fac. Coll. VIII. 163; Dict. 13,519; Supp. V. 558.]

Covington. I would not incline to depart from the judgment of the House of Lords in the cases from the counties of Forfar and Linlithgow. It is the prerogative of the Crown to make an union. Sir Thomas Craig seems to question this, but the general opinion is otherwise. It is established, by the judgment of the House of Peers, that this privilege is communicable; but when the Crown's charter authorises infeftment in a particular place, I deny that the Crown's disponee can authorise infeftment in any other place: yet I think, that as infeftment has been taken, and the years of prescription have run, that all challenge is cut off. After the years of prescription, I will presume every thing, even a dispensation from the Crown.

Braxfield. I do not say that the erroneous practice in Orkney and Zetland has been so general as to make me depart from what I understand to be the law; but there has been such a practice as is sufficient to make me cautious in throwing loose the titles of these countries. The true question here is, Whether is the objection to the sasine extrinsic or intrinsic? If intrinsic, then the sasine is null from the beginning, and it cannot grow better by being older. A sasine may be a good sasine, though not taken on the grounds of the lands, in consequence of a dispensation from the Crown; if this dispensation is once established, it is in the power of the proprietor to communicate it to the persons to whom he makes partial dispositions. Before prescription is run, the person who produces the title must remove the objection to it; but, after the prescription, the objection comes too late: it is the great purpose of prescription to support bad titles: good titles stand in no need of prescription.

Kaimes. You must still begin with a good title of possession. The charter here is very good, but the sasine is ex facie defective. The holder must show that it is not defective.

Monboddo. It is established in practice, that the Crown can give dispensation; but I am clear that a subject cannot authorise the taking sasine any where else than on the lands. As to the erection of an earldom, that makes no difference: still the sasine must be in the place which the charter mentions. It alters the case greatly, that this challenge has not been brought till after the years of prescription. The Act 1617 is our magna charta; I should be sorry to see it limited. The only objection here is as to the power of the granter; and that, after the years of prescription, will be presumed.

Justice-Clerk. The sound construction of the Act 1617 is of great moment. The question here is, Whether is the objection extrinsic or intrinsic? If there is no sasine, there is no right; but here the objection is altogether extrinsic. It is an objection to the title to grant dispensation. How can that be good, when an objection to the right of the holder is not good?

On the 10th August 1778, “The Lords found that the defender had produced sufficient to exclude;” altering their interlocutor of ——.

Act. D. Rae. Alt. Ilay Campbell, D. Armstrong.

No vote; but Elliock and Hailes against the interlocutor.