Objections, &c. competent to some and not to others.
Tenants of Scone v. Sir Hugh Herries
Date: 19 February 1601 Case No. No 53.
Not competent to the Officers of State to allege that a gift of escheat was taken for behoof of the rebel.
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In an action of sextuple-poinding, pursued by certain tenants of Scone, against the comptroller Sir Hugh Herries, my Lady Gowrie, Mr Alexander Kinross, Mr William Reid and others. It was alleged by Mr Alexander Kinross, That he should be answered and object, because he had the escheat and liferent of my Lady Gowrie and declarator thereupon, which Lady Gowrie was served and kenned to a sum a third of the lands of Scone, and in possession thereof. It was answered by Sir Hugh Herries, with concurrence of the comptroller, That the said Sir Hugh should be answered, because he having, by gift of our Sovereign Lord, the forfeiture of the Earl of Gowrie's said lands, which Earl Gowrie was infeft heritably in the said lands, and also was five years in peaceable possession of the said lands immediately before his treason and forfeiture; which possession, by act of Parliament, was, he should be answered, especially in respect that the said gift of liferent was null, being simulately taken by the to the behoof of his mistress retenta possessione, and that she noways, as yet being relaxed. The Lords allegeance the nullity of the gift of liferent, found the act of Parliament, and simulation; and found not the to the said Sir Hugh, nor to the comptroller, treasurer, or advocate, but only competent to a creditor to whom the rebel was addebted, or to any other donatar. As to the allegeance of the Earl Gowrie's possession by the space of five years, it was answered, That it was not relevant, because the possession was not peaceable, but lawfully interrupted by my Lady Gowrie, by pursuits against Bogie and Mr John Moncrieff for contravening of lawburrows in troubling her in possession of the said lands; likeas, Andrew Henderson, chamberlain to the said Earl, had made him count and payment to several creditors to whom she was addebted, at her command, of the farms and duties of the said lands anno 1599. Which replies were found relevant. It was farther alleged, That the said Sir Hugh could be in no better case than the sometime Earl, and the said Earl could never have intromitted with my Lady upon the mails and farms of her third, because she being served and kenned thereto in anuo 1587, her service and kenning standing by the space of three years unquarrelled, could not thereafter be impugned by way of action, nor yet by exception, in respect of the 57th act of King James IV. It was answered, She could never clothe herself with that service or kenning, because her umquhile husband, in anno 1570, infeft her in the lands of Dirleton, Cousland, and Halyburton, in full contentation of her terce of all lands that pertained, or could pertain, to her by his decease; which infeftment she had accepted, and possessed the said lands conform thereto; and, as to the prescription, it had no place but in retours, and could not run against minors or persons furth of the country, nor against the Prince. Which answer was found relevant. Thereafter Mr William Reid alleged, That he should be answered of the duties of such lands disponed to him in pension. It was answered, That her pension was null, because it was given to him by the sometime Earl of Gowrie in June 1600, immediately before the committing his treason, and the entry thereto appointed to be at Candlemas anno 1601, long before the which time, the said Earl committed treason and was forfeit, and therefore the pension was null. It was answered for Mr William, That it was provided by act of Parliament, anno 1594, that all bonds, contracts, tacks, pensions, and others, made, granted, or disponed by persons that should thereafter commit treason, should be null, if the same were neither clad with possession nor authorised by decreet of some ordinary judge before committing of treason by the granter thereof; and thereafter, he having obtained letters conform to his gift in July, before the treason committed by the Earl, his pension was valid. It was answered, That it was null, because in tacks and pensions paria sunt indebite fieri et in indebitum tempus conferri, and this pension was not appointed to have possession while Candlemas 1601, which was long after the Earl's treason and forfeiture, and so was null.—The Lords found the pension null, because it was given of the teinds of the Abbacy of Scone, and disponed by Gowrie as Abbot, and that tacks or pensions granted by prelates and conferred in indebitum tempus, were null.
Fol. Dic. v. 1. p. 521. Haddington, MS. No 647.
*** The blanks in this case are obliterated in the MS.
