Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Colonel Hurry
v.
The Relict and Bairns of John Grahame

Date: 28 January 1670

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In a declarator pursued at Colonel Hurry's instance, as donatar to the escheat of John Grahame, whose gift was granted upon an Act of Adjournal, declaring him fugitive for the crime of treason; for which he was charged to underly the law by a herald and by sound of trumpet; which act did ordain him to be denounced rebel, and his whole goods to be escheat to the King's use: It was alleged, there could be no declarator upon the Act of Adjournal, unless the rebel had been likewise lawfully denounced; and the executions of the letters produced were but extracts, and not stamped. It was replied, That the Act of Adjournal per se was sufficient, and albeit the executions were not stamped; which was only necessary for executions for civil debts: yet in cases of treason, where the executions by heralds and sound of trumpets have so great and public solemnities, the omission of affixing the stamp, by the herald, could not prejudge the King nor his donatar.

The Lords, before answer to the first allegeance, having considered the Act of Adjournal, which did ordain him to be denounced, and his whole goods to be escheat, did ordain the pursuer's procurators to produce any practicks that could be found for attestations; or any Act of Adjournal, or out of the register of the Exchequer, to prove the custom of granting escheats, upon the simple Act of Adjournal, without denunciation. And as to the second, did ordain the principal letters of horning to be produced before answer.

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