Earl of Breadalbane v. Macdougall

Subject_1 Superior and Vassal Subject_2 Casualty Subject_3 Entry. Facts: Held that where a vassal or his authors have recognised one as superior by taking an entry from him or his predecessors, the vassal who resists payment of a casualty on the ground that the right of superiority is in a third party, must adduce most conclusive evidence. Evidence held insufficient to establish such a ground of defence.

The Earl of Breadalbane raised a summons of declarator and for payment of a casualty against Alexander W. Macdougall of a casualty against Alexander W.Macdougall of Soroba in Argyll, to have it found and declared that in consequence of the death of Major Duncan Macdougall, who was the vassal last vest and seized in the six merk lands of old extent of Soroba, a casualty, being one year's rent of the said lands, had become due and fell to be paid by the defender.

The pursuer alleged that he was the immediate lawful superior of the said lands under a series of titles going back for several centuries; that Major Macdougall, the last vassal, who was entered with John Earl of Breadalbane in 1821, had since died, date unknown; and that from him the present defender had derived the dominium utile of the said lands by a direct series of titles.

The defender denied that the Earl of Breadalbane was superior of the lands of Soroba of which he (the defender) was proprietor. He averred that the superiority of the six merk lands of Soroba belonged in last century to the Duke of Argyll; that in 1819 the superiority was conveyed to Mr Macdougall of Dunollicht or Dunolly, who entered with the Crown and was duly infeft; and that the superiority now belonged to the representatives of the said Mr Macdougall.

From the titles produced it appeared that besides Major Macdougall's entry in 1821 as above, Macdougall of Soroba had entered in 1740, and again in 1795, with the Earl of Breadalbane. It also appeared that Macdougall of Dunollicht, to whom the superiority was conveyed by the Duke of Argyll in 1819, was then proprietor of the lands of Soroba, and that the two titles since 1831 had been consolidated in the persons of his successors.