Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.

Charles Campbell
v.
Gabriel Napier

Date: 23 December 1739

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This was a competition about a superiority which fell to the Crown by the forfeiture of the Viscount of Kilsyth.

Kincaid, proprietor of the lands, and vassal of Kilsyth, took the benefit of the clan-act, at least in so far that he presented a signature to the Exchequer, within the six months, upon which Balquan, his disponee, was infeft some time after; but both he, and his author, Kincaid, omitted to give in their claim to the trustees for the forfeited estates, as they were enjoined by Act of Parliament, notwithstanding this superiority was rentalled with the rest of Kilsyth’s estate, and so surveyed and seized by the trustees in terms of the statute. Afterwards the Barons of Exchequer, by virtue of the Act of Parliament 1726, vesting the remainder of the forfeited estates that were not sold, in the crown, for the use of the public, and authorising the barons to sell them for that use, put up this superiority to roup, and Gabriel Napier was the purchaser, betwixt whom and Charles Campbell, deriving right from Balquan, the question now comes.

The Lords found, That, as there was no claim given in to the trustees, in terms of the Act of Parliament, the benefit of the clan-act could not here be claimed; and therefore this superiority fell under the Viscount’s forfeiture, and was in the person of the king, not jure coronæ;, but as trustee for the public; for which reason the Barons of Exchequer were authorised to sell it, by the foresaid Act 1726, as well as the rest of the forfeited estates that remained unsold; and therefore preferred the purchaser from them, Gabriel Napier.

N.B. It was supposed, in this debate, that, if Kincaid had used the benefit of the clan-act, as he might have done, then the superiority in question would have been no part of Kilsyth’s forfeiture, and so could not have been sold by the barons.