Forfeiture of a Sub-vassal. - Effect of Rebellion. - Misnomer.
Stuart v. L Wedderburn.
Date: 29 June 1627 Case No. No 51.
Intromission, though for onerous causes, after forfeiture, found to be wrongous.
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In a cause of wronguous intromission with the teinds of Coldingham, at the instance of John Stuart of Coldingham against the L. Wedderburn and Others; the said John Stuart being provided to the abbacy of Coldingham, and thereafter the Earl of Bothwell his father being forfaulted, after whose forfaulture the Earl's posterity, by act of Parliament anno 1592, being declared unhabile to bruik any benefice in the kingdom; and, by another act of Parliament, anno 1594, the abbacy of Coldingham being annexed to the Crown, and the Earl of Home having acquired the right of that abbacy from the King, and having set tacks of divers teinds of this abbacy to divers persons, who being convened in this action to repay the same teinds, set in tack to the said John Stuart, as he who in anno 1621 was restored against this act of dishabilitation, and his said provision found good by the estates, and all things done in prejudice of his right and provision, with all rights made since his dishabilitation to others, being reduced and annulled by the said acts; the saids defenders defending themselves against the said pursuit, by virtue of the saids tacks, the Lords repelled their exceptions proponed thereupon, albeit they were purchased conform to the laws then standing, and for sums of money, and causes onerous, and which they alleged should defend them in this possessory judgment, they being possessors bonæ fidei, especially against a restitution of grace, as they alleged this to be; seeing that, by act of Parliament 1584, it is provided, that no person should thereafter be restored who was forfaulted, but only by way of grace. And, by the 4th act of Parliament 1606, it is provided, that restitutions by grace should not prejudge persons who had acquired right of any thing belonging to the person forfaulted from the King, as they and their author had done. And, by the act salvo jure, the same Parliament 1621, wherein the pursuer's restitution was done, it is ordained, that no act made in favours of any particular party should prejudge any private party's right; whereby they alleged, That the pursuer's act could not prejudge their preceding rights, especially such an act which was not deduced upon process, and whereto they were never called, nor proceeded it upon any citation, and so behoved to be a restitution by way of grace; likeas they alleged, that they compeared in that same Parliament, and protested that that act should not prejudge them; which protestation was in effect admitted by that act salvo jure, made after the said protestation, and must work the same effect as if it had been specially admitted. This allegeance was repelled, in respect of the said act, which was not only found to be of the nature of a gracious restitution, but contained a ratification of the pursuer's provision, and a rescission of the deeds done in prejudice thereof, and of the act of dishabilitation, and all rights depending thereon; and that the said act of Parliament could not be drawn in dispute before the Session, if it was formally, or well done, or not, they not being Judges thereto; neither could that act salvo jure, take away the other act made in that same Parliament specifice done ex certa scientia. The like decision was done in an action of removing, betwixt the Earl Nithsdale and M'Lellan, decided 5th July 1627, (See Appendix.) But the Lords found, they would reserve to themselves to consider what satisfaction should be made for the years libelled to the pursuer, after adducing of probation upon the quantity of their intromission these years; which years libelled were only the years 1625 and 1626, and so divers years after the pursuer's act of restitution. Likeas to interrupt the defender's bona fides, he offered to prove execution of inhibition against these defenders, and intentings of actions of spuilzie for these same teinds of divers other years, preceding these years acclaimed, which the Lords admitted to probation, to the effect foresaid, as said is.
