Dame Elizabeth Douglas, and Sir Robert Sinclair of Longformacus, v. Laird of Wedderburn
Date: 24 February 1665 Case No. No 42.
One being dishabilitated by Parliament without citation or crime, and being re-habilitated, not ex gratia, but of justice, a gift of his forfeited estate found to fall of consequence, without citation of the donatar.
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The Lady Longformacus, as heir to her goodsire, William Douglas of Eveling, who was donatar to the escheat and liferent of John Stewart of Coldingham, pursues the Laird of Wedderburn, for the teinds of his lands, which teinds pertained to the Abbots of Coldingham. The defender alleged, Absolvitor, because he has tack to run, flowing from the Earl of Hume, who was infeft in the Lordship of Coldingham, and before that was Commendator thereof, by his Majesty, 2do, John Stewart had ratified all rights flowing from the Earl of Hume, and consequently this tack, after which the donatar of his escheat could not challenge the same, for the ratification is equivalent, as if the tack were granted by the ratifier. The pursuer answered, That the defence upon the tack, and the Earl of Hume's right, ought to be repelled, because the Earl of Hume's right is reduced by the Parliament 1621, on this consideration, that the Earl of Bothwell being Commendator of Coldingham, had demitted the same in his Majesty's hands, whereupon the said John Stewart, his son, was provided by the King, Commendator of Coldingham; and thereafter, the Earl of Bothwell being forfaulted, the said John, and his other children, were dishabilitated, and declared incapable to bruik and enjoy his land and heritage, or to succeed to any person within this realm, by sentence of Parliament; whereupon the King provided the Earl of Hume to be Commendator of Coldingham; and thereafter, on the Karl's own resignation, infeft him therein, in an erected Lordship, and thereafter, in the Parliament 1621, the King and estates, upon express consideration, that John Stewart was an infant, noways accessory to his father's crimes, did therefore annul his dishabilitation, and re-habilitated him; and declared, that he should have right to the Abbey of Coldingham, in the same manner as he had before his dishabilitation; and rescinded all rights and infeftments of the said Abbacy, granted by his Majesty, to any person of the said Abbacy since the said dishabilitation, in so far as the same might be prejudicial to John Stewart's provision, that he had before. After all which, John Stewart, upon his own resignation was infeft in the property of Coldingham; so that the Earl of Hume's right being reduced in Parliament, and falling in consequence with John Stewart's dishabilitation, whereupon it was founded, the defender's tack following thereupon, falls also in consequence, as was already found by the Lords, in anno 1628, betwixt the said William Douglas of Eveling and the Laird of Wedderburn, conform to an interlocutor, extracted and produced, which is sufficient inter easdem partes, and cannot be questioned super eisdem deductis now; albeit at that time, Wedderburn passed from his compearance, and so the decreet against him was in absence, yet the interlocutor was ordained to be extracted against him by the Lords, which is sufficient; and as for the ratification of the tacks granted by the Earl of Hume, the same was after John Stewart had resigned his commendatorship, and before he was infeft in property. The defender answered; 1 mo, That the said reduction of the Earl of Hume's right was without calling of the defender, or of the Earl of Hume himself; 2do, It mentions no particular right, or any person, but in general, all right; and so is but a private right impetrated from the Parliament, without hearing of parties; and therefore falls under the act of Parliament salvo jure; and as to the former interlocutor of the Lords, the reason why the Lords sustained the said rescissory act, was because they found themselves not competent to judge as to sentences of Parliament, or to annul the same upon the not calling of the parties, in respect that the act salvo 1621 relates to ratifications, but not to such sentences as this; but, by act salvo 1633, it is expressly declared, that that act, and all former acts salvo, should not only extend to ratifications, but to all other private acts impetrated without hearing of parties, and prejudicial to other parties' rights; and therefore now the Lords ought to proceed upon the parties right, without consideration of that act rescissory.
2do, The act of Parliament prohibits and annuls all restitution of forfeiture by way of grace, in so far as may be prejudicial to those who bona fide acquired rights from the King medio tempore; and so the rehabilitation of John Stewart cannot prejudge the Earl of Hume, or the defender, who had right from the Earl. It was answered for the pursuer, That there was no difference in the two acts salvo jure, albeit the last was more express than the first, containing the same in effect. 3tio, John Stewart being dishabilitated by the Parliament, without citation or crime, might justly be rehabilitated eodem modo, without citation, and that not by way of grace, but in justice, as not accessory to the crimes; and albeit forfeitures may not be taken away by way of reduction, by the act of Parliament 1584, cap 135, yet that cannot be extended to the dishabilitation of their children, so that the Parliament doing nothing prejudicial to any party's right, but restoring John Stewart to his just right, eo ipso, the Earl of Hume's right fell in consequence, as founded upon John Stewart's dishabilitation, and with it the defender's tack.
The Lords repelled the defence upon the tack, in respect of the reply, for albeit the act of Parliament 1633 be much larger than the act salvo 1621, so that thereby the Lords might have cognosced upon John Stewart's rehabilitation as without citation, if it had wronged any other person's right; but finding that it was an act of justice, wronging no person's right, they found the same relevant.
