Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Sir Laurence Scot v. Duke of Hamilton
Date: 8 November 1671
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November 8.—Sir Lawrence Scot, sometime of Clarkington, as having licence, pursues Duke Hamilton for sundry annualrents of the principal sum of 26,000 merks owing by Duke William to Sir William Scott his father, who died in 1656.
Alleged, The Duke must have defalcation of eight years annual rent, indulged to the forfaulted persons the time of the usurpation; which is founded first on an act of Parliament, granting commission to sundry persons for trying and taking probation upon the losses of the several forfaulted persons, and then on an act of Council, finding the losses of the house of Hamilton to have been so great that they deserved the said benefit. To which it was replied, That the most the Duke could crave was only six years and a half, because he had got allowance from the liferentrix of the sum of an year and a half's annualrent, upon the account of their forfaulture. 2do, The said act of Parliament and act of Council following thereon cannot be respected, because it was but a private act; he was not called thereto, and therefore his interest by the act salvo jure was reserved. To thir it was duplied, 1mo, The Duke craved but allowance for six years and a half. 2do, He can never Allege it was done parte non citata, because he was expressly called to the trial taken before the Council. 3tio, The Lords cannot be judges for taking away an act of Parliament. Triplied, His calling then imported nothing, because then he had not a right in his person, and so had no interest to oppose: yea, there was one of the Duke's creditors compeared and opposed, and he is expressly excepted out of the act, and is ordained to be paid of his haill annualrents.
The Lords, without respect to the act, reponed Sir Laurence to his defences; and appointed him, as if he were in campo, and as if the said act were never passed, to object what he would have said against the same if he had compeared before the passing thereof.
Conform to which interlocutor it was alleged, The Duke could in no reason plead for eight years defalcation, because they offered them to prove that the Dutchy of Hamilton was detained by the enemy only from the 1652 till 1654, scarce by the space of two years, and so their loss was not so considerable as to afford them the foresaid benefit; yea, their advantage in being sequestrate was very great, seeing on that account they got considerable abatements from their creditors.
Replied, Their losses were very great, as appears by the probation led before the Council: neither will any man in law or reason say, that the only rule for judging whether a man should be eased of eight years annualrent must be the space of time their estate was detained by the usurpers before they recovered the peaceable possession thereof again.
They were to have the Lords' answer, whether the Duke should have the said defalcation, yea or no, seeing his lady stood forfaulted but two years.
Advocates' MS. No. 241, folio 109.
November 11.—In the foresaid action betwixt Sir L. Scot and Duke Hamilton at Number 241, taken to interlocutor, the Lords found the Duke should have defalcation of eight years annualrent; without prejudice to the fiar to debate with the liferenter why she and not he should bear that burden, and but prejudice to them of seeking reduction of that act in favours of the Duke in the next Parliament.
