the College of Justice in the year 1532, came in the place of all summonses before the ordinary courts. A brief was an instrument issuing from the Chancery, and directed either to the Justiciary of Scotland, or to the Judge Or dinary, ordaining him in the name of the King to try the matter set forth in the brief, by a jury, or inquest. Upon the verdict of this jury the claim was determined. The brief might either be simply declaratory of a right in the party obtaining it, or might conclude specially against some particular defender. In the former case it was a brief not pleadable and retourable, that is to say, it was only necessary to publish or proclaim it at the head burgh of the particular jurisdiction, without special citation of defenders, and the verdict of the jury was returned to the Chancery by the judge to whom the brief had been addressed. In the latter case it was a brief pleadable and not retourable, because the defender was specially cited, and the brief became the ground of a proper action before the competent judge, who pronounced sentence in terms of the verdict of the jury, and made no return to Chancery. Brieves of inquest or service of heirs, of tutory, idiotry, &c. were retourable brieves. But the brieves of right, of mortancestry, of terce, of division of lands, &c. were all directed against some defender specially cited, and were therefore pleadable and not retourable.

In terms of the ruling investiture of the Lennox, the two coheiresses of Rusky who represented Margaret of Lennox, and Dernely who represented Elizabeth of Lennox, were each of them entitled to the character of one of the heirs-general of Earl Duncan, because his daughters Margaret and Elizabeth were coheiresses. Consequently, none of these representatives of Margaret and Elizabeth of Lennox required to be specially called

in defence against a simple brief of inquest, at the instance of any one of them. They might all and each establish their respective characters, of heir-general, feudally in the Lennox, without affecting the correlative rights.

But the case was otherwise in any attempt to divide the lands, or to decree to any one of these parties some particular portion of the fief in property. According to the territorial principle, which certainly then existed in Scotland with regard to titles of honour, the legal mode of taking upadignity was to become feudally invested in the Caput Comitatus, or principal portion of the particular fief, including the chief mansion-house or messuage. According to another indisputable principle of the law of Scotland, titles of honour were indivisible rights, which, in the case of coheiresses, were regulated by the law of primogeniture, and belonged to the eldest female or her representative. Consequently, in a process of division of the lands, the elder coheiress was entitled to claim as her portion that which included the messuage, and this claim could only be made effectual under pleadable brieves of division, to which all parties required to be specially summoned to appear for their interest.

We may now revert to what actually took place in reference to the possession of the Lennox. The illegitimate grandson of the Duchess Isabella had, for a time at least, excluded the legitimate grandchildren of that lady's younger sisters from the actual enjoyment of their respective portions, by securing to himself possession of the Lennox, an irregular and unjust proceeding, which placed him in the anomalous position of being infeft as liferenter in the whole of that Comitatus, without being able to assume the title of Comes (to which Lord Avan

dale never put forth a pretension) though that ought to have been the natural consequence of his feudalized possession. No brieves of division, therefore, were issued from Chancery at this time, in favour of the coheirs of Earl Duncan. Elizabeth Menteith asserted and established her character, as one of the heirs-general of her great-grandfather, by the simple brief of inquest, of which the original retour to chancery, with the seals of the inquest attached, is still extant. Agnes Menteith, however, remained in apparency, and her husband seems to have preferred taking a charter to himself of onefourth of the Lennox, which was the extent of his wife's share, but without any reference in his charter to that lady. Upon this he was infeft, which established his feudal interest in the Lennox to that extent.

One legal effect of Haldane's mode of procedure in this matter was to prevent any process of division of the lands until his return. For when he obtained his charter he also fortified himself with a well known and most important legal document of those days, namely, royal letters of protection against all suits during his absence and for forty days after his return. No brieves pleadable, therefore, could be effectually discussed until these letters expired, and they afforded a very certain ground of reduction of any process that might appear to have been instituted contrary to their tenor.

John Lord Dernely, however, as his whole public carreer proves, was not a man to stand upon ceremony with law or justice, and accordingly his service as an heir-general of Earl Duncan exhibits some curious ir regularities. The brief of inquest which he demanded, and which at length issued from Chancery in his favour, when he had satisfied the conditions of the chancellor, ordained, and could ordain no more, that his pro

indiviso right to one-half of the lands of the Lennox should be determined by the jury, upon their being satisfied of the propinquity upon which his claim depended. But Dernely, it seems, having packed a jury of his personal friends and dependents, got a verdict retoured to Chancery, which found what ought not to have been found, and did not find that which ought. This retour, still preserved in the Montrose charter-chest, serves Dernely heir to Duncan Earl of Levenax in the principal messuage of the said earldom, and in the half of the property of the earldom. Again, it was the duty of a jury, under a brief of inquest, to determine upon sufficient evidence the propinquity which gave the legal character claimed; yet it has been asserted that in this retour, the name of the lady, through whom Lord Derly claimed, is, for reasons which will be apparent afterwards, left doubtful.* It was at all events entirely be

* The author of the Case for Gleneagles appears to have had access to the Dernely papers in the Montrose charter-chest, and it can hardly be supposed that the following account which he gives of Dernely's retour is inaccurate : "Darnly obtained brieves from the Chancery, and in a very irregular manner got himself served heir to Duncan Earl of Levenax, as his great-grandchild, lawfully descended of

daughter to the said

said earldom, and in the The original retour of this

Earl, in the principal messuage of the half of the property of the said earldom. service is still extant in the hands of his Grace the Duke of Montrose, and is dated 23d July 1473. It is still blank in the name of the Earl's daughter, through whom he claimed, which shows with what uncertainty and inaccuracy it proceeded, and how hastily it was carried through, when the very point on which the whole hinged could not be fixed." Case, p. 2. The Case for Woodhead, however, quotes some of the clauses of this retour, without indicating a blank actually left, as above; "de capitali messuagio et de tota et integra dimidietate dict. terr. Comitatusque de Levenax, &c. tanquam de seniori filia dicti quond. Duncani legitime descend." &c. p. 52. An

yond the terms of such a brief to determine any thing about the particular parcel of lands to be allotted, as this was only a retourable brief, and not a brief of division, which was a pleadable brief. Yet here was a finding which enabled Dernely to obtain infeftment in the principal portion of the earldom, the Caput Comitatus, in the absence of all the other parties.

The precise period of Dernely's first assumption of the honours has been stated as a historical puzzle.* But a comparison of the dates of the various deeds obtained by him about this time, and of the different style adopted in each, will, when taken in connection with the above narrative, place the matter beyond doubt.

So long as he was not infeft upon any deed embracing the chief messuage of the earldom, he indulged not

drew Stewart in his History, p. 185, says, " Upon the 23d of July 1473, John Lord Dernely was actually served heir to Duncan Earl of Lennox, his great grandfather, as being lawfully descended from Elizabeth, the daughter of the Earl, in half of the earldom of Lennox, and in the principal messuage," &c. This author had all the Dernely papers from the then Duke of Montrose, and so uncandid a statement was scarcely to have been expected from a writer of his station and character. I have not had the advantage of inspecting the original retour, but, whether there be a blank left or not, it appears from Mr Hamilton's quotations, that Elizabeth's name is not mentioned, and that she is called " seniori filia,” which certainly she It was not essential to name her in the retour; but if a blank occurred it would seem to say that the jury had not been satisfied as to the connecting link. In the retour of Elizabeth Menteith, the relative expressions are," tanquam de juniori filia dicti quond. Duncani legitime descendens," which was perfectly accurate, as the Duchess Isabella was the eldest daughter.

was not.

* "With regard to Lord Darnly's assuming the title of Lennox, the precise period when he first began to do so does not appear.”Case for Gleneagles, p. 4.