The representative of a donatar of a forfeit person being sued upon the act rescissory 1690, by the heir of the rebel, it was found that the defender behoved to account, not only for bygone actual intromissions, but for the rent of the estate when he entered to possession, and even for omissions, the pursuer proving what the rental was, and that the donatar had a general intromission; allowing to the defender the usual deductions for waste rooms.
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William Muir of Caldwall being forfeited in 1667, for the rising at Pentlandhills, and his forfeiture being gifted to General Dalzell, and this being rescinded not only by the general act in 1690, but likewise by a special act, the Heiress of Caldwall pursues Sir Thomas Dalzell, as representing his father, and his goodsire, the General, for repaying the rents of these lands, intromitted with by them from the date of the gift in 1669, to the restitution in 1689, being twenty years. Alleged, As to any intromission had by his grandfather, he acknowledged his representation of him, and was ready to hold count; but quoad his father, he nowise represented him, and so could not be liable for his intromission; seeing the right made by the General was to the defender's father in liferent, and to himself in fee. Answered, The defender's father being a gratuitous assignee, his intromission was no better than if he had been his father's factor, in which case he was still liable, especially seeing it was fraudulent betwixt father and son, and so quarrellable on the act of Parliament 1621; and the act rescissory in 1690 speaks not only of the donatars refunding bygone rents, but likewise of their assignees. The Lords found Sir Thomas liable not only for his grandfather the General's intromissions, but likewise for his father's, who was a voluntary gratuitous assignee. Then it was alledged for the defender, in the second place, That he could be liable only for their actual intromissions, as the same shall be proved by discharges under their hands scripto, seeing they were bonæ fidei possessors at the time, conform to the laws then standing, and so ought not to be stretched against them. Answered, They opponed the act rescissory, ordaining it to be understood in the amplest form the words could bear; and to count only for actual intromissions, now after so long a time, would wholly elude and frustrate the restitution designed by the act; seeing discharges to tenants being small papers, may be now lost or abstracted, or it may be that none were given, but only marked in the master's count-book; so to count after that manner is just nothing at all. Some thought this restitution of the bygone rents a severe clause; but the rescission of the forfeiture being per modum justitiæ, and made so close of purpose, to discourage the seeking gifts of forfeiture, the Lords found he behoved to count not only for his predecessor's actual intromissions, but conform to the rental of the estate, when he entered to the possession; they proving always what the rental was, and that he entered to the possession, and had a general and promiscuous intromission universally over all; as appeared by the decision marked by Stair, 28th January 1674, General Dalzell contra the Tenants of Caldwall, No 26. p. 4685, where he quarrelled their tacks as set beneath their true value; but prejudice to the defender to discharge himself by proving, that the rooms stood waste, or by his losses by depauperate tenants, and the other usual deductions. See the parallel case decided Baillie of Jerviswood contra the Duke of Gordon, No 62. p. 4746; as also the case betwixt Argyle and Athole, No 63. p. 4748. Some adduced the instance of adjudgers and apprisers entering to possess within the legal, that either the co-creditors or debtors will oblige them to count for the whole rent unless they instruct quomodo they were debarred; but a donatar to a forfeiture is in a different case, for he being dominus and proprietor for the time, he cannot be brought under the rule of ‘ought and should,’ but may intromit or not at his pleasure; but if it be proven, that he once enters to the possession, law presumes against him that he continued, unless he instruct either a legal or forcible debarment, via juris vel facti; and though it cannot be pretended he possesses tanquam prædo, which would make him liable to violent profits, yet there is such a rotation in human affairs, that they who take gifts of forfeiture, should remember they are not very secure, aud a time of restitution may come; forfeitures being often rescinded with us on every turn and change of government, as appears by the rescissory acts in the Parliaments 1661 and 1690; and by many other examples. However, the restitution of bygones seemed very hard to some; the answer was, Durum est, sed ita lex scripta est.
Fol. Dic. v. 1. p. 315. Fountainhall, v. 2. p. 297.
