Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Captain Macdowal v. Macdowal of Freuch and George Fullerton of Dreghorn
Date: 18 July 1707
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Captain Macdowal, against Freuch and Fullarton. Macdowal of Freuch being forfeited, for joining with the rising in arms at Bothwel Bridge; and Colonel Graham of Claverhouse, afterwards Viscount of Dundee, being made donatar to his forfeiture; George Fullarton of Dreghorn, Freuch's uncle, com-pones with the donatar, and for a great sum acquires a right to the forfeiture. Captain Macdowal, being a creditor on Freuch's estate for 30,000 merks, but unconfirmed, applies to Dreghorn, what he would give him for his debt: and though, in the circumstances as they then stood, he needed not have owned him in a sixpence, yet they agreed on 7000 merks; which the Captain accepted in that desperate case in full of his whole claim, and gave an assignation to Dreghorn, blank in the name, to his portion foresaid; which was afterwards fill. ed up in the name of James Edmonston of Dreghorn and Freuch's behoof, in 1682. After the Revolution, Freuch being restored amongst the rest, by the rescissory act 1690; and likewise having recovered the composition paid to the Viscount of Dundee, by affecting his lands of Dudhope, and from the Duke of Douglass, donatar to Dundee's forfeiture; Captain Macdowal intents a process against Freuch and Dreghorn, craving to be reponed and restored to his own place, against the transaction so disadvantageously made, quitting 30,000 merks for 7000, plainly arising from the terror incussed by the forfeiture; and so it was either sine justa causa or ob causam nunc finitam, per I. 1, sec. 2, D. de Condict. sine causa; and since you Freuch are fully restored, and have the benefit of your estate, it is against natural equity that, ex meo damno, you should be enriched; 14, D. de Condict. Indeb. and /. 206, de Reg. Jur. and much more when I am damnified by a voluntary deed of yours, by running to Bothwel-bridge: And as there was a fault on your side, so there was evident vis et metus on mine; and it is unjust to obtrude your restitution to cut me off from my right on your estate: But it should be equally to us both, as the Emperor Dioclesian determines in 1. 12, C. de Sententiam Passis et Restitutis. Where a criminal is restored against a sentence of deportation, if he would protect himself thereby contra creditores suos, it is improbus conatus, a dishonest attempt.
Answered for Freuch,—That it is a most extraordinary action to reverse a transaction so deliberately entered into, and accepted with much thankfulness, as a singular favour, when he could not have expected a farthing: And the rescissory act 1690 annuls no transactions but those made by the rebels' wives or widows; which, being the only exception in the act, confirmat regulam in cash-bus nan exceptis. And the 16th Act of Parliament 1695 declares, That the person restored shall have the benefit of the eases of all the debts purchased during the forfeiture.
Replied,—This can never be called a transaction; which is ever super re dubia, and where there is a lis pendens; but here there could be neither doubt nor question, the Captain's debt being clearly cut off by the forfeiture, and the donatar gave him law, and concussed him into whatever offer he pleased to make.
The Lords considered this was the first case where such a repetition was demanded by creditors of forfeited persons, and might be a leading preparative to many others; therefore resolved for making a rule to hear it in their own presence.
