Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
John Preston v. Sir George Campbell Of Cesnock and His Lady
Date: 17 January 1696
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The pursuer had an old infeftment of annualrent out of the lands of Newhall, whereof the Lady was heretrix; and he now craving to poind the ground, they suspended on the 16th Act 1695, allowing retention, to the forfeited persons now restored, of as many years' annualrents as they paid for years wherein they stood forfeited; and subsumed that Cesnock's forfeiture continued three years, and yet during all that time Mr Preston uplifted his annualrents; and for which they must now have retention and compensation. Answered,—They were not in the terms of that Act of Parliament, which meant only debtors personally bound, which Cesnock was not, the fundus being properly debtor. 2do. It was only in the case where the forfeited persons were dispossessed; but so it is, the Lady enjoyed her proper inheritance of Newhall during all the years of the forfeiture, which carried the jus mariti; and though it was a gift from King James, yet that cannot prejudge Mr Preston now.
The Lords found Cesnock's claim for retention had no foundation in the Act of Parliament; and therefore decerned in the poinding of the ground.
