WILLIAM WALLACE v The EARL of EGLINTON (Court of Session)

In 1742, Patrick Montgomery, vassal in the lands of Caprington, obtained a decree of tinsel of superiority against the heirs (portioners) of Sir William Cunninghame of Cunninghamehead, the superior, on which decree a preceptum amissionis superioritatis issued from Chancery, followed by infeftment. In the same year, (1742,) the said Patrick Montgomery sold the lands to Robert Hamilton, (the ancestor of the defender,) who, on the procuratory in the disposition, obtained a crown charter and infeftment, both of them referring in gremio to the decree of tinsel of superiority.

In 1774, the Countess of Crawford, (eldest daughter and institute under a deed of entail executed by Robert Hamilton,) on the death of her father, obtained a crown charter and infeftment, upon a procuratory of resignation in the deed of entail, absolutely and without reference to the limitations of her author's right as affected by the decree of tinsel.

In 1776, the Messrs Ferrier, as superiors, raised a process of declarator of non-entry, and of maills and duties, against the Countess of Crawford; but, after a submission, which expired without decree being pronounced, the process was allowed to fall asleep.

In 1791, Colonel Fullerton of Fullerton called in question the character which Sir William Hamilton had assumed as heir of Sir William Cunninghame; and in a competition of brieves, these two parties were served heirs-portioners of the said Sir William; and in 1798 the Messrs Ferrier, Colonel Fullerton and Sir William Hamilton, granted a conveyance of the lands of Caprington, &c. with all right and interest in them, in favour of Alexander Walker, who expede a crown charter, and was infeft.

It was objected to the title of the pursuer, that the trust-adjudication had been adduced upon an erroneous charge, while the general service expede in 1791, being of the nature of a tentative title, and personal to the individuals served, could not be made available to a disponee after their death.