A forfeiture having been rescinded by a special act, it was found, that the donatar, though possessing bona fide, was bound to make restitution to the heir of the rebel.
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The Lords repelled the first defence against the title, in regard he was both executor and heir served, and his not being infeft was through the defender's fault, who being his superior refused to enter him, and so could never obtrude that defect. As to the second, anent his restitution of the bygone rents, it was founded not on the general act rescissory in 1690, but on his special act; and the Lords repelled the allegeance, that as bona fide possessor fecerat fructus consumptos suos, by virtue of a law then standing; for the special act proceeding upon nullities in his trial, and the probation adduced against him by witnesses, who were socii criminis unpardoned, and so under the terror and impression of death, they thought this sufficient to interrupt the Duke's bona fides, though others called this durus sermo.
February 27.—The Lords gave a hearing in præsentia to the petition of the Duke of Gordon contra Jerviswood, mentioned 8th current. And it was debated both from the grounds of the common law, and on the two acts of Parliament, the one general and rescissory of fines and forfeitures, and the other special; that the Duke's bona fides was sufficient to defend him against restitution of the bygone rents of Jerviswood's lands, intromitted with by him on the gift of forfeiture before the Revolution; and decisions and authors were cited on both hands for proving how far such restitutions per modum justitiæ extend; as Gayl. Tractat. de pace publica; and Perezius ad tit. C. de sententiam passis. But Mathæus ad tit. C. de indulgentia principis, thinks all these restitutions are to be strictly interpreted, and not to be stretched to bygone fruits which were bona fide percepti et consumpti, unless it expressly bear the same. And here Jerviswood's speciality does not mention the bygone rents; though it was alleged, This was a mere omission through negligence, and Cesnock's, with the special acts, bore them; and it could signify nothing if it did not import this.——The Lords demurred if restitution would follow on the principles of the common law; but the generality found the special act took off the Duke's bona fides, and so decerned restitution. In this case it was remembered, that in the late government, the Earl of Callander and Sir Alexander Hope of Kerse were forced to give back both the principal sums and annualrents, which they got of the the Earl of Bramford's forfeiture. But, 1mo, It was not by a decision in jure, but an arbitration; 2do, The authority for forfeiting Bramford was funditus rescinded, (See supra). But it was not so in Jerviswood's case.
