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Scottish Court of Session Decisions >>
Robertson of Strouan v the Marquis of Athol. [1680] Mor 14435 (23 June 1680)
URL: http://www.bailii.org/scot/cases/ScotCS/1680/Mor3314435-021.html Cite as:
[1680] Mor 14435
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In the improbation Robertson of Strouan against the Marquis of Athol, they would not sustain process, till a full progress were produced connecting and coupling the rights together, whereof many complained.
1680. July 30.—In Robertson of Strouan's improbation against the Marquis of Athol, the Lords “found the producing a charter and sasine following upon a comprising was not a sufficient title, though it was past 50 years ago; but he behoved to produce likewise the letters, executions, and decreet of apprising, (for the letters and executions, it is hard post tantum tempus;) as also the bonds, or other grounds and warrants thereof.”
1681. February 26.—In Strouan Robertson's service for making up his titles against the Marquis of Athol, he having served himself general heir to one of his predecessors who lived 250 years ago; and this day being to be served heir in special, the Lords, at Athol's desire, appointed three of their number to be assessors to the macers, (poor men would not get this allowance,) and the service was continued till the Lords should resolve these three points: 1 mo, If in the days of King James II. a charter be a sufficient document whereon Strouan may be served heir to that man to whom the charter is granted, though there be no sasine upon it, sasines at that time not being necessarily required, and which, by the 27th act James III. Parl. 1469, are called a new invention; and Craig, p. 143*, says, charta sola olim sufficiebat. See Dury, 24th June, 1625, Town of Stirling, No. 18. p. 6621. voce Improbation. 2do, If he could in his service pass by his father and others who were infeft, and serve himself heir to his grandfather's grandfather's
* Edition 1655.
father, &c. 3tio, If the inquest, without incurring the hazard of perjury, might serve him heir in lands, whereof the Marquis instructed him or his authors denuded; (it is true, not indeed by a voluntary disposition, but by a legal diligence of comprising, which is not yet expired, albeit they were willing to mention it in the service.) The Lords shunning all these difficult locks, and waving the decision of these points, “declared they would sustain Strouan's general service as a sufficient title in the reduction, and in the mean time stopped the special service;” by which Athol got this advantage, that he medio tempore might obtain a gift of the non-entry and other casualities of that piece of land. See Craig, p. 382, sasines are not 200 or 300 years old with us; yet, in Cap. 2. of King Malcolm M'Kenneth, near 500 years before Craig wrote, charters and sasines are mentioned.
