[1674] 3 Brn 49
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL
Subject_2 WINTER SESSION. - Anni 1973.
Date: The Marquis of Huntly
v.
His Feuars
28 February 1674 Click here to view a pdf copy of this documet : PDF Copy
A second appeal was given in to the Lords by the Earl of Aboyne as commissioner, and in name and behalf of the Marquis of Huntly, his nephew, in an action pursued by the Marquis against Gordon of Carneborrow, and sundry others his feuars, for reducing their feus, as having fallen under his forfaulture, they not being confirmed by the King.
The Lords found the defender's feu-infeftments good, valid, and sufficient to defend against the forfaulture; especially the apparent heir of the person forfaulted being restored, and the forfaulture funditus taken away as ab initio null and unjust, and the restitution being non per modum gratiæ, but justiciæ. See supra, No. 406, (June, 1673, General Dalzeel against Tenants of Caldwell,) 437, (28th January, 1674, General Dalzeel against Tenants of Caldwell,) where the Lords
maintain tacks against a donatar to a forfaulture. See Hippolitus de Marsiliis singulari, 122, where he defends that propter domini delictum vassallus nequit feudo privari. See Stair's System, tit. of Infeftments, §. See a discourse apud me, why neither the creditors, cautioners, nor vassals of forfaulted persons should be prejudged or be cut off by the forfaulture; it is elegantly enforced, folio 68 et sequentibus. And though, in strictness of rigour, by the feudal law, and nature of that contract, the fee revertiug and opening to the superior by delict, it returns, prout optimum maximum est, as it was given out, without noticing any incumbrances contracted upon it since, except the over-lord had acknowledged, accepted, and owned them, by giving his consent or confirmation, or by admitting resignation in their favours; yet our law has oft inclined to a mitigation and temperament in this point, by mingling a little equity; lest otherwise, faithful, loyal, and innocent subjects be put to suffer, without any other fault than an omission of a nice punctilio of form. See act 37 in 1571; act 130 in 1592; act 201 in 1594; act 3 in 1600; and the rescinded acts, 33 in 1644, and 9 in 1645. When the Marquis returned from the French camp, my Lord Lauderdale persuaded him judicially to compear before the Lords of Session, and take up his appeal and declare he past from it; and which he did on the 26th of January, 1675. And though they had promised him not only a new hearing, but gave him some insinuations to hope a redress, yet, after a second debate, they adhered to their former interlocutor, and so he was either ill or well served for his complimenting them. But the times were such as no rational man could expect a ratification from them of what had once escaped them, though unawares. They blushed to confess what is incident to humanity itself, (nam humanum est errare,) where their honour was once engaged at the stake; lest they should inflame, foment, and encourage the insolence of many who were watching for their halting: and which censoriousness was improven to that height that they were ready of molehills to make a mountain, by turning to themselves the wrong and magnifying end of the prospect; and even to name and stamp what is just, legal, and warrantable, not with the pardonable nick-name of an error and frailty, but even with the most intolerable and ignominious brand of downright injustice, partiality, and subversion of the interest of the subject, and the settled laws of the kingdom.
Anent the appeal to the King and Parliament presented by Lord Almond, against an Interlocutor of the Lords of Session, in the case, The Earl of Dumfermling against The Earl of Calendar, in February 1674. See that case.
Notwithstanding all the pains was taken on the Lord Almond to pass from his appeal, and take it up, yet nothing hath hitherto prevailed with him to make him do it, but he lives in hopes to make it rise up in judgment against them whenever we get a fair and unprelimited parliament: which may be long enough ere we see it. Vide practicam præcedentem; infra, num. 479, (Tenants of Bathgate, June, 1676;) supra, num. 122, (Earl of Argyle against Campbell, February 2, 1671,) and 156, (Hamilton against Bell, 25th February 1671;) infra, num. 487, Bishop of Dumblaine against Kinloch, July, 1676.
I have few or no observations by the space of three Sessions and a half, viz. from June 1674 till January 1676; in regard I was at that time debarred from my employment, with many other lawyers, on the account we were unclear to serve under the strict and servile ties seemed to be imposed on us by the King's letter, discharging any to quarrel the Lords of Session their sentences of unjustice, and was not restored till January, 1677; so that we shall content ourself with remarking a few things that occurred in that gap and interval.
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