Found that a person forfeited and restored, per modum justitiæ, might use any benefit the donator had obtained, during the forfeiture; such as a decree of preference, &c.
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Phesdo reported the competition betwixt the Earl of Cassillis, and James Montgomery of Lainshaw. The first point was, Having once produced his tack of the teinds in the process, he might not take it up again when he found the Earl, who had newly raised and cast in a reduction of the said tack, on this head, that it was set before a prior one had expired, was going to hold the production satisfied.—The Lords found a party might take up any writ, (not quarrelled as false,) before allegeances were proponed thereon, or litis-contestation made in the cause. The next point was; during Lainshaw's forfeiture, Strathallan, donator thereto, had obtained a decreet of preference, on Lainshaw's tack of these teinds of Kirkmichell, before Cassllis's right; and Lainshaw, now founding on that decreet, as res judicata, to exclude Cassiillis; still he alleged Lainshaw had no right to the same, the forfeiture being funditus, rescinded, and all following thereon taken away.—Answered, That is only so far as the restored persons were lesed; but it were a very sinister interpretation, to make a detorsion, of what is designed for a benefit, to my prejudice; for, put the case, that the donator had interrupted the prescription, which was running against the rebel, or set a profitable tack; would not these accresce to one restored, per modum justitiæ? And, on the 13th of July 1664, between the Earl of Lauderdale and Bigger of Wolmet, (No 5. h. t.) a certification, obtained by Swinton, when donator, was found to belong to Lauderdale, that he might found on the same.—The Lords generally inclined to think, the forfeited person might use any benefit the donator had obtained; even as the improvements of a tutor accresce to a minor; meliorem facere potest conditionem pupilli sed non deteriorem; but, falling to consider this decreet of preference, they found it not to be a preference in time coming, but only for some bygone year's teinds; and found it no sufficient active title to compete with Cassillis for subsequent years, without the tack itself were produced. (See Process.)
