Forfeiture found to exclude a subaltern right granted by the forfeited person.
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The Marquis of Huntly as donatar to the forfaulture of Argyle, pursues improbation and reduction against the vassals of Huntly, and specially against the Laird of Grant; who having defended upon subaltern blanch infeftments from the house of Huntly, it was answered, That these could not defend him, seeing the forfaulture of the King's ward-vassal Argyle, who by apprising came in place of Huntly, returned the fee to the King, without any burden by a deed of the vassal not approven by law; and though in Cairnborrow's case, No 2. p. 4170, subaltern feus were sustained by the act of Parliament King James II. allowing such feus, yet there is no ground for other subaltern infeftments, blanch or ward;
Which the Lords sustained; for though forfaulture be penal, introduced by statute or custom, whereby treason is punished by the loss of life, lands, and goods, yet thereby the King gets no more than the forfault person had; in the same way as in liferent escheat, the fee comes to the superior cum suis oneribus realibus, and all infeftments, annualrents, and tacks constituted by the vassal anterior to the rebellion are valid, but forfaulture of a ward-vassal having also implied therein recognition, excludes all deeds of the vassal not authorised by law, or consented to by the superior, and therefore subaltern feus of ward-lands being authorised by the act of King James II. and before the act 1612 repealing the same, are sustained against forfaulture, but no other subaltern infeftment.
