Scottish Court of Session Decisions

Subject_1 PAPIST.

Robert Johnston of Keltoun, and other Creditors of the deceased Alexander Maxwell of Tarraughtie,
v.
John Maxwell, Eldest Son to the said Alexander and John Maxwell of Breckenside

Date: 21 July 1710
Case No. No 2.

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In the competition for mails and duties of the lands of Tarraughtie, betwixt Alexander Maxwell's Creditors and John Maxwell his eldest son; the Lords found an adjudication, led in the name of John Maxwell of Breckenside, a papist, upon a gratuitous bond granted by the said John Maxwell to him, null by the act 3d, Parliament 1700, for preventing the growth of popery; albeit the said adjudication was led for the behoof of the granter of the bond, who is a protestant. And it was alleged for him, That it was not the meaning of the statute to prejudice protestants, or to hinder them to employ papists as their trustees, except allenarly in the education of youth, and the management of their affairs; whereas the granter of the bond was major, and so not to be supposed that he could be seduced by the influence or converse of his popish trustees.

Fol. Dic. v. 2. p. 25. Forbes, p. 432. *** Fountainhall reports this case:

1710. July 25.—The Creditors of Maxwell contra Graicy and Reid, in a competition for mails and duties. Graicy's right was, that John Maxwell, Tarraughtie's eldest son and apparent heir, grants a bond of 30,000 merks to Maxwell of Braickenside, his uncle, whereon he leads an adjudication, which is conveyed to Robert Graicy, and then to Mr Andrew Reid for John Maxwell's behoof. The other competitors were old Tarraughtie's creditors, and his second wife and her children, who founded on a bond of provision, whereon they were infeft. After many objections on either side, at last Tarraughtie's creditors pitched on this, as the shortest way to bring their process to an end, that, by the 3d act 1700, it is statuted, that no adjudication, or other real diligence, be competent at the instance of a papist, or for his behoof, upon a gratuitous bond, or any other gratuitous deed whatsoever; now, to subsume in the terms of this law, it is not denied that Braickenside is a professed and notour papist; 2do, That the bond is gratuitous, is as evident; for, though it bears the onerous cause L. 20,000 in its narrative, yet being betwixt uncle and nephew, by the act 1621, it is not probative. Next, it is known, that Braickenside, all his lifetime, was never able to lend 1000 merks, much less 30,000 merks. Answered, If this bond and adjudication were to the behoof of Braickenside, the papist, then they acknowledge it would fall under the act of Parliament and be null, the design of that necessary law being to prevent papists from acquiring heritage, or having share in the property of the nation; seeing, by other clauses in that act, papists cannot serve heir; and though they be creditors for onerous causes, and adjudge for their debts, the legal can never expire, but only subsists for a security of their money; but here it is confessed, that diligence by adjudication is not to the papist's behoof, but expressly to John Maxwell, a protestant, as his trustee; and Braickenside has no benefit thereby, but only interposes, and lends his name for a protestant's behoof, which noways interferes with the design of the act of Parliament, which is not to prejudge protestants, but only to prevent papists having interest in property further than as creditors; and no part of the act discharges the employing papists as trusteees, the person for whose behoof it is being the only true proprietor. And though the foresaid law stop the expiring of an adjudication in the person of a papist, yet when conveyed to a protestant it expires within a year after; and though all dispositions to cloysters and popish societies be null, yet they are not so null but they accresce to the next protestant relation; even so here, though the adjudication be null in Braickenside's person, yet it may well enough subsist, being now transmitted to a protestant. Replied, That law will not so much as allow a papist to be employed in such trusts, for the law is not in copulative terms, but conceived disjunctively, if the adjudication be either led by a papist, or by a protestant for his behoof; so it is enough to say it is led at his instance, though, as to the alternative, it be not to his own behoof. And when can a Scots protestant be straitened? Can he not find trustees without pitching on a papist? Besides, a posterior clause of the act clears up this doubt; for it discharges papists from being chaplains, schoolmasters, governors, pedagogues, tutors, chamberlains, or factors; and if incapacitated from any trust or management of affairs, then a fortiori this disability will reach trusts.— The Lords, resolving not to loose a pin of that act, found the adjudication null, though it had been originally for a protestant's behoof; and much more when it is only conveyed to him since.

If the papist's call this persecution, let them remember it comes not up to the hundredth part of their unmerciful sanguinary laws; and that experience had made this act necessary, for securing the government both civil and ecclesiastic against their vigilant and unwearied attempts.

Fountainhall, v. 2. p. 592.