John Gib of Castletoun v. David Robertson of Touchie
Date: 25 June 1713 Case No. No 4.
Whether a gift of single, escheat, flowing from the Crown fell under the right of the Lord of the Regality, within which the party lived?
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In a declarator of single escheat, upon a gift flowing from the Crown, at the instance of John Gib against David Robertson,
Alleged for the defender, The gift in favours of the pursuer cannot carry right to the defender's single escheat, because he lives within the regality of Kinross, and Sir William Bruce's heirs have right into all escheats of persons within that regality, conform to a charter from the sovereign of the year 1685, whereby the lands of Kinross, a part of the church-regality in Aberdour, were disjoined from that regality, and erected with other lands in favours of Sir William Bruce and his heirs-male, in unam integram baroniam nuncupand. Baroniam et regalitatem de Kintoss, cum plenario jure, privilegio et jurisdietione liberæ regalitatis, liberæ capellæ et cancellanæ, ac justiciariæ intra prædictas integras bondas regalitatis. And the said Sir William Bruce and his heirs-male are constituted hæreditarii balivi dictæ regalitatis, cum omnibus et singulis privilegiis, immunitatibus, casualitatibus, commoditatibus, proficuis et divoriis quibuscuoque; et cum omnibus honoribus, dignitatibus, emolumentis et libertatibus quibuscunque, similiter et adeo libere in omnibus respectibus, ac ullus alius dominus regalitatis, intra dictum regnum nostrum Scotiæ utitur potitur et exercet, virtute suarum cartarum, jurium et infeofamentorum earundem legum et constitutionum bujus regni nostri uti et exercere poterint; cum eschetis vitalibus reditibus et forisfacturis omnium personarum quæ infra dictam regalitatem quæ sub prædictis criminibus eorumve aliquo caderint, aut rebelles dedunciati, convicti aut forisfacti fuerint, aut alio quocunque modo caderint, intromittendi, levandi, assignandi, et insuper donandi, eademque cum omni jure quod nos ad eadem habuimus, habemus, vel pretendere poterimus, &c.
Replied, for the pursuer, primo, Sir William Bruce's charter doth not comprehend single escheats, because not expressly mentioned, and escheats being inter regalia majora, are not carried under general words, Stair, B. 2. Tit. 3. & 60. Now, that single escheats are not expressed, is obvious, seeing the words cum eschetis vitalibus reditibus, if they have any sense, can be understood only of liferent escheats by joining the word vitalibus to the preceding word eschetis, For single and liferent escheats are usually disponed thus, cum eschetis tam vitalibus quam simplicibus, and if there was any ambiguity in the clause it ought to be favourably interpreted for the crown, especially, considering, that by the act of annexation, all ecclesiastical regalities were extinguished, and the power of jurisdiction by heritable Bailies, only reserved to be given by the sovereign. Secundo, Esto the charter comprehended single escheats, yet at the time of granting the gift to the pursuer, Sir William Bruce's right of disposing of escheats, was by his neglecting to take the oath of allegeance, void and vacated during his incapacity, in terms of the act of Parliament 1693.
Duplied for the defender, primo, The word eschetis ought unquestionably to be joined to the subsequent word reditibus, because liferent escheats, belonging naturally to Sir William as superior, whether the rebel's lands lie within his regality or not, needed not to have been particularly disponed; and, the lands being erected with all the privileges of a regality, the clause containing a disposition of escheats, must be understood so as to agree with the erection. Secundo, The act of Parliament requires only baillies, and not lords of regality, to qualify by taking the oath; therefore, Sir William Bruce, in whose favours the regality of Kinross was erected, with all the privileges competent to any lord of regality, could not, through his not qualifying, fall from his privilege of gifting escheats, which is compentent a lord of regality as such, and not to bailies of regality, but by special grant from their lord: And, though Sir William be named in the charter only hereable baillie of regality, yet having annexed to his heritable right all the priviliges competent to any lord of regality; his not qualifying according to law, could only deprive him of the exercise of jurisdiction qua baillie of the regality, such as holding of courts, the benefit of sentence-money, and other perquisites or dues of court, and could not cut him off from disposing of the casualty of escheats, which is no exercise of jurisdiction, but a part of his property that belongs to him, as to a lord of regality, though the rebel be judged, and his lands lie within another jurisdiction, June 26 1680, Young contra L. of Raploch, No 26. p. 3635. Mackenzie, Crim. part 2 tit. 11.
The Lords found, That Sir William Bruce had right to gift single escheats fallen within the regality of Kinross; and that by not taking the oaths, he did not lose that right. See Escheat.
