Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
William Welsh of Scar v. Sir Alexander Areskine of Cambo, Lord Lyon
Date: 28 January 1696
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Halcraig reported William Welsh of Scar against Sir Alexander Areskine of Cambo, Lord Lyon, for repetition of a competition of 1900 merks, which the pursuer's father paid to the defender's father for procuring a gift of his father's forfeiture, for being at Pentland Hills' rebellion. The defence was, Neither the pursuer nor the defender are in the terms of the Act of Parliament rescinding fines and forfeitures; for it is only in favours of forfeited persons, (which you are not,) and against donatars, which the defender's father was not; and though the Act allows repetition from donatars and others, yet the word others imports only such as derive right from donatars.
The Lords thought an heir served might have the benefit of that restitution, as well as the forfeited person himself; but found the Lyon having only acted as a friend at the interposition and desire of the rebel's son, and not being donatar, he fell not within the terms of the said Act of Parliament; unless it could be proven, that my Lord Lyon was putting in to get the gift of the forfeiture to himself, and that his son, to prevent it, and get it in his own name, came and offered him the said composition: But if he was only applied to as a friend, to do the son a favour, there was neither law nor reason to extend this strict and exorbitant Act to that case. There was another reason suggested, that this was paid for procuring the gift of forfeiture, (which was never obtained;) and so it was causa data et non secuta, and ought to be repaid; this was not determined, but remitted to the Ordinary to hear them further anent it.
