Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Master of Forrester
v.
The Earl of Callander

Date: 15 November 1672

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General Ruthvin, late Earl of Bramford, being forefault in the time of the late troubles, was, by a special Act of Parliament, in anno 1662, restored; which act was superseded to be extracted, while, by order of Parliament 1667, it was ordered to be extracted. Whereupon the Lady Forrester, who had right by disposition from her father, and the Lord Forrester her husband, obtained decreet against the Earl of Callander and others, for re-payment of certain sums upon wadset, belonging to the said Earl of Bramford. And, upon a petition by the Lord and Lady Forrester to the Parliament, in July 1672, complaining, that, by a contract with the Lady Dowager of Bramford, the Parliament's intention, for preserving the Earl of Bramford's memory, would be frustrated, after citation and hearing of the Countess; the Parliament did declare, that their meaning, by the restitution of the Earl of Bramford, was, that his estate should be established in the person of Edward Master of Forrester, procreated betwixt Bramford's eldest daughter and the Lord Forrester, he carrying the name of Ruthvin, reserving to his father and mother the half of the annualrent thereof during their life; and ordained all decreets obtained, or to be obtained for that estate, to be in his name; who thereupon petitioned the Lords, that the decreet against Callander, not yet extracted, might be in his name. Compearance was made for the creditors of the Earl of Bramford and Lord Forrester, who alleged, That the said Act of Parliament could have no effect against them, whose right was preserved by the act salvo jure; for, some of the creditors having arrested, and some having gotten assignations intimated from the Lord Forrester, and all of them having right to affect Bramford's estate, as being established in the person of his daughter and husband, by the Act of Restitution, extracted in anno 1667, it can neither consist with the justice nor intention of the Parliament, by their late act, to take away the rights of the creditors, but only to alter the fiar, which must be, as the matter stood, the time of the last act; for, if before, if the Lord Forrester and the Lady had disponed, or uplifted the sums, and discharged the same, this supervenient Act of Parliament could never infringe the same; and yet, by an extensive interpretation, it would. It is answered, That, whatever might have been said before the making of the Act of Parliament, yet, it now being made, it hath the force of a law, and cannot be restricted by any other authority than the Parliament. Neither doth it fall within the act, salvo jure, which relates only to ratifications and such rights as pass of course; but where the Parliament, of certain knowledge, doth enact any thing, the same can be nowhere judged but by the Parliament. And there is no difference whether the parties concerned be called or not; as was decided by the Lords in several cases observed by Dury, as in the case of the Earl of Rothes, John Stuart of Coldinghame, and several others; and especially in this case, where the Act of Parliament is not a sentence or determination principally concerning the rights of private parties, but is an act of restitution of a person unwarrantably forefaulted; which, though it proceeds upon the grounds of justice, and not merely of favour, yet it cannot be controverted but that,—in the act of restitution, if, at first, the fee had been established in the person of Bramford's grand-child, carrying his name, (but that) it would have been valid, and Forrester's creditors could not have called it in question. And this act being an act explanatory of the former, bearing expressly, that such was the Parliament's meaning, and that it should be in the same case as if it had been so conceived at first; the creditors' collateral interest ceaseth. And if the friends of Bramford had craved it so to be declared, they needed only call the Lady Dowager, the Lady Forrester, and her husband, and not the creditors, whose right would fall in consequence; and though the matter had been represented to the Parliament, they neither ought nor would allowed Bramford's estate nor memory to be absorbed by Forrester's debt; and, for Bramford's own debt, a restitution to his estate in general will never exclude it. It was answered, That not only the act salvo jure, which was the greatest security of the people, did preserve the interest of all the creditors, but likewise the Lords, by a general Act of Parliament, are ordained to decide according to the general laws, and not by acts impetrated by private parties, to the prejudice of others who were not called nor heard; but, above all question, the Lords are interpreters of Acts of Parliament, and may and ought to interpret this, so as to convey the fee to the grandchild, as it was the time of this act, and so with the burden of the debt. It was replied, That there was no real burden affecting the estate, but, at most, arrestments, upon which nothing had followed, and an assignation, in place of a cautioner in a suspension. And here the Parliament having expressly decerned, that this decreet against Callander should be in the person of the grand-child, there neither being title nor process at the creditors' instance produced to crave preference upon,—all that now is in question is, whether the decreet should be extracted in the name of the grand-child, conform to the said Act of Parliament. The Lords found, That now there was no more before them but the extracting of the decreet, which they ordained to be extracted in the name of Edward the grand-child, conform to the foresaid Act of Parliament.

Vol. II, Page 117.