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.
John Gib of Castletown v. David Robertson of Touchy
Date: 15 February 1712
Click here to view a pdf copy of this documet : PDF Copy
John Gib of Castletown having obtained from the Exchequer the gift of the single escheat of David Robertson of Touchy, and pursuing a general declarator, it was alleged, this was a most humorous and invidious process; for the debt of the homing was not full twenty merks Scots, as the dues of the schoolmaster, and now paid, and yet he has raised this vexatious process thereon; which is still irrelevant,—for his lands lie within the regality of Kinross; and if his single escheat be fallen, it belongs to Sir William Bruce, the lord and heritable bailie of that regality, whose charters dispone the escheats of all living within that bounds; and from whom the defender has the gift of his own escheat; and so yours being a non habente potestatem, it is absolutely null.
Answered, 1mo, Sir William's erection will not extend to single escheats; for it runs in thir terms:—Cum eschetis vitalibus reditibus et foris-facturis omnium person arum infra dictum territorium; so this clause gives him only liferent escheats: for when it designs to convey both, then it runs in this strain,—cum eschetis tarn simplicibus quam vitalibus. 2do, Esto it extended to both, yet Sir William's right thereto was superseded, cassed, and annulled by the 6th Act of Parliament l693, declaring, that where the lords or bailies of regalities, or other heritable offices derived from the Crown, did not qualify themselves to. the government, by taking the oath of allegiance and assurance to King William and his successors, they shall, ipso facto, be deprived of these offices and employments: but so it is, Sir William Bruce never took these oaths, and so incurred the certification; and the casualties falling back to the Crown, during his incapacity, my gift is well founded, and yours is null; for it behoved either to belong to the Queen or to the lord of regality; not to him, for he had forfaulted and tint his right, during his not qualifying; ergo it fell to the Crown; for there is no medium.
Replied,—The construction put on Sir William's gift is a downright quibble and catch; for the word vitalibus is not to be joined with the preceding word eschetis, but to the subsequent word reditibus; so it is a downright mistake in grammar: and he has as full right to all sorts of escheats as any regality whatsoever.
To the second, founded on the Act of Parliament, answered,—That certification seems only to concern the bailie of the regality, and not the lord of it; whereas Sir William was both: and does only restrain them from exercing acts of jurisdiction, and holding of courts, and loses the perquisites and fines there; but noways deprives them of the casualty of escheat, which is no part of the jurisdiction, but a private right and consequence of his property. Now, suppose King William had named a bailie of regality in Sir William's place, he could have had the ordinary exercise of jurisdiction within the bounds, but not the disposal of escheats: ergo, these staid with the heritor.
The Lords shunned to take it on that nice point of Sir William losing his casualties, by not qualifying: but it was started, that, by his rights as a baron, he had it in his charters to dispose of escheats; and that lords of regality were no other but barons, with a higher degree of jurisdiction; as also, that this defender did not owe the donatar to the escheat a sixpence; and therefore should not extend his gift beyond the debt of the horning; at least no farther than his back-bond did: therefore they remitted to my Lord Royston, Ordinary in the cause, to hear them, how far Sir William, as proprietor, could claim these casualties, abstracting from his right as lord of regality; and to try if the gift was under back-bond, and the terms of it; for though in some cases donatars have prevailed to obtain gifts of escheat without the burden of back-bonds; yet the Lords thought that a singular and extraordinary practice, and not to be extended, neither against creditors nor debtors.
