Divorce. - Failzie. - Redemption. - Extinction by Intromission. - Gift of Forfeiture.
Lord Livingston v. Roger Gordon of Troquhen
1683.
March. Case No. No 18.
Though a gift of forfeiture pronounced in Parliament need no declarator, there can be no action upon such gift, without declarator, where the forfeiture is in virtue of a sentence before the court of justiciary.
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In an action of mails and duties, at the instance of a donatar of forfeiture, it was alleged for the defender, No process till the gift be declared.
Answered: Gifts of forfeiture pronounced in Parliament need no declarator; and by a late act of Parliament it is declared, That forfeitures in absence before the justice court, shall be in the same case as if they had been led in Parliament.
Replied: The design of the late act was only to make forfeitures in absence before the Justices equivalent to forfeiture where the party is present; and as gifts of forfeiture where the party is present, have always required to be completed by declarator, that can be no less necessary to gifts of forfeiture in absence. And Hope, in his Form of Process, and likewise Craig, are clear, that where forfeiture passes by act of adjournal, the gift requires declarator.
‘The Lords found declarator ought to be raised incidentally, and thereafter the pursuer might insist in his process;’ although it was contended, that seeing the Lords of Session were not competent Judges to any nullity or informality of a criminal process, they could not be proper Judges to the declarator.
Fol. Dic. v. 1. p. 229. Harcarse, (Forfeiture.) No 491. p. 135.
