Holburn of Menstrey v. Sir Theophilus Ogilthorpe and David Main
1687.
February. Case No. No 80.
Sentence of fugitation does not draw back to the date of the crime.
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The Lady Earlstoun, after she had disponed her liferent, being pursued before the council for the treasonable crimes of ‘harbour and reset,’ restricted to arbitrary punishment, and referred to oath, and declared fugitive and denounced; there arose a competition between the assignee to her liferent, and the donatar to her escheat.
Allged for the assignee; That the cedent's personal absence and contempt could not prejudge him in whose favours she stood denuded before the council-citation.
Answered for the donatar; That the rebel was convened for crimes of treason committed before the assignation, to which the sentence of fugitation must be drawn back.
Replied; Though sentences of forfeiture, upon probation of the crime, are drawn back to the date of the committing thereof, yet the declaring a person fugitive infers only contempt in not compearing, conform to the will of the letters, upon which nothing falls but the single escheat, and the liferent if the rebel continue year and day unrelaxed, as in the case of denunciations upon horning.
