Scottish Court of Session Decisions

Lord Justice-Clerk—It does not appear to me to be necessary to go into the various questions which have been raised—questions of some delicacy,—for there is sufficient in the conduct of the pursuer's authors to decide the case. Their taciturnity during all the long interval since 1819 is, I think, enough. The Lord Ordinary has sustained the plea of vicennial prescription, and I am content to adhere to his interlocutor. The case presented to the Court is a very strong one, as the lands were immediately after the service sought to be reduced, transferred to singular successors, by whom and by their successors they have been held since 1820. The cases of Nelson and of Campbell, referred to in the course of the argument, appear to me to be direct authorities upon the point. It was the protection apparently of singular successors that the statute enacting the vicennial prescription had in view, and for the security of the title to property such limitation was necessary. In the case of Nelson, the singular successor, it was held, might after the death of the heir served plead and be protected by the vicennial prescription, while the case of Campbell was one of pure propinquity; and yet the Court held it to be clear that the prescription could protect a retour. Holding these cases as distinct and direct authorities, I cannot here entertain any doubt.

But it was then argued that the retour was obtained by fraud. Now, I cannot say, and I do not express any opinion, whether in such a case a singular successor would be protected against the claims of the party defrauded; but here there really is not any relevant allegation of fraud at all. To say that perjury was committed does not seem to me to affect the matter, and though perhaps a relevant statement as to subornation of perjury might have been of some avail, there is here not even that. On the whole, I am for affirming the interlocutor reclaimed against.

Lord Neaves—I concur. It was argued to the Court that a general retour was personal to the party retoured, and did not survive to the benefit of his representatives. Now, in Campbell's case the general service expede was a service as heir of tailzie, referring of course to a particular estate, and there could not be service again to the person out of whose hereditas jacens it had thus been taken. Where nothing in the way of possession has intervened, then I think possibly recourse might be had to the original source, without regard to intermediate steps upon which nothing had followed; but that is not so here. Then we have the lapse of time, now so great, and the inevitable consideration that Thomas Burd must have known of his brother's fraud, and that he was alive and major from 1823 till 1855.

As to the question of fraud, I think the contention of the pursuer is quite unprecedented. The defenders' position is not dependent on the fraud of Peter Burd, but on a series of authoritative acts, followed by real possession for 57 years. I am disposed to go upon the special circumstances of the case in coming to the same conclusion as the Lord Ordinary.

Lord Ormidale—I am of the same opinion. If the retour were ex facie bad, then there is nothing to save it, for it never really had an existence; but there is no such case presented to us here. The retour is perfectly regular ex facie, and I do not think that after 20 years anything can affect it. The statute of 1617 is very distinct and very simple, and does not even require possession to follow on the retour, but there may be modifications of its stringency, and I propose to make a few observations on the objections which have been maintained.

Here we have possession ever since the date of the retour; there is no doubt of that, and accordingly it is not necessary to inquire into the soundness of the dictum of the Lord Chancellor in Nelson's case.

The first objection taken to the validity of the service was that there was no jurisdiction in the bailies of Aberdeen, but I think it is clear there is nothing in that. What occurred was that a brieve of inquest was taken out, and addressed to parties having jurisdiction. This, it is said, should have been at Peterhead, but I think that the county town was a more natural and, to my mind, a preferable place. It is not disputed that there was legal proclamation of the brieve, though it is said no one was called as defender. I should like to know who could have been so called. The brieve was a general summons to all parties having any interests involved.

The second objection took the form of an argument that a retour was only available to the party retouring, and was not after his death available to those who represented him. This was equal to a contention that a man thus retoured would, as long as he lived beyond the 20 years, be quite safe, but that after the lapse of all that time, if he died, then the retour could be challenged and set aside. I cannot sustain that view, and there is no authority to be found for it anywhere, and without going into other cases than those of Nelson and Campbell, I merely say that such a plea cannot be available here.

The third and only other objection is founded on fraud as a ground of reduction. The fraud here must be carefully distinguished from what would be an absolute nullity, for this only amounts to fraud sufficient to constitute an opening for an action of reduction. If it had been alleged that the whole proceedings here had been

Page: 42↓