Scottish Court of Session Decisions

Subject_1 PRESCRIPTION.

Earl of Caithness and Mr Francis Sinclair
v.
Sinclair of Ulbster

Date: 13 June 1746
Case No. No.27.

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In the process Earl of Caithness and his Trustee, against Mr Sinclair of Ulbster and Earl of Breadalbane, the defender pleading prescription on a disposition and infeftment in 1673, the pursuer replied on his own minority; —but as he was not heir of the family till his father's death in 1702, when he was of full age or thereabouts, he founded his reply on the apprizing of the estate by one Murray, which had been acquired by his grandmother, and of which he produced two dispositions from her to him, the first dated 1691. when he was a minor infant, and wherein the disponee's name appeared filled up with a different hand from the writer of the body, and another in 1702, referring to and ratifying the former, the first having the Common clause of delivery of writs, and the second referring to them as already delivered. It seemed hard that a latent disposition to an infant should stop running of the prescription; but we thought the law stood so, and there was no division. But the first question was, What time the first disposition is presumed to have been filled and delivered? The Court was divided in that point, but it carried, from the date of it. The second question was, Whether that would stop running of the prescription only in so far as concerned that apprizing, so that if it was null, or satisfied, or paid, or could be otherwise excluded, the prescription might run as to all other rights? or if it should stop the running of prescription as to all rights now in the Earl's person;—and the Lords found the first, that it stopped prescription only as to the apprizing. 3dly, We repelled an objection to the prescription on Ulbster's and his author's mala fides.