The quinquennial possession must be uninterrupted.
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In a process of mails and duties, at the instance of a donatar of forfeiture, out of the lands wherein the forfeited person had been retoured quinquennial possessor, compearance was made for a third party, pretending interest in some of these lands, who alleged, 1mo, That he had raised reduction of the retour upon this ground, That the inquest had committed iniquity in not allowing him to propone his allegeance, viz. that the rebel was not in peaceable possession for the space of five years, as the act of Parliament required, but that his possession was interrupted and disturbed by a process. 2do, That there could be no process at the pursuer's instance, unless there were a general declarator raised upon his gift.
Answered; The retour being upon oath, cannot be quarrelled; nor can the rebel's possession be reputed unpeaceable or interrupted, upon the account of a process on which no decreet followed. 2do, By the late act of Parliament forfeiture in absence by the justice court is declared equivalent to forfeiture in Parliament, which requires no declarator; and it would be a great prejudice to the King and his donatars, to run the tedious course of general declarators.
Replied; All prescriptions, long or short, are interrupted by process. 2do, The act of Parliament makes forfeiture by the justices, of an absent traitor, to be as effectual only, and no better, than their forfeiture of a pannel who is present; and by custom declarators are always raised and required upon gifts of forfeiture before the justices. And Hope is clear that where forfeiture proceeds by way of act of adjournal, the gift thereof requires declarator.
The Lords delayed to give answer to the first point, and were inclined to find, that general declarators were of little use in the case of forfeiture, seeing the nullity of a forfeiture is not competent to be cognosced before a civil judicature; and therefore sustained process in the special declarator, seeing the pursuer consented to the defender's proponing any defence competent in the general. Vide a case between the parties, No 8. p. 3416., where forfeiture before the justices was found to need a declarator.
Harcarse, (Forfeiture.) No 492. p. 135.*** P. Falconer reports the same case:
In the action of mails and duties pursued by my Lord Livingstoun, as he who was donatar to the forfeiture of . It was alleged, That there could be no process sustained upon the foresaid gift of forfeiture, it being a forfeiture in absence, before the Lords of Justiciary, and the samen not declared; and, that the act of Parliament appointing forfeiture in absence before the Justice-general does not privilege decreets of that nature, more than there had been compearance, and if there had been compearance, the samen ought to have been declared. The Lords sustained the defence, and found, That the decreet ought to be declared, not being a decreet in Parliament. See No 18. p. 3416.
