Scottish Court of Session Decisions

Subject_1 FORFEITURE.

Hume of Billie
v.
Hume of Ninewalls

1740, Nov. 14.
Case No. No. 3.

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Ninewalls being by decreet-arbitral bound to pay 4000 merks to Hume of Wedderburn for the superiority of some land which Wedderburn was decerned to dispone to him, Wedderburn assigned the 4000 merks, which by progress is now on Ninian Hume's person;—and being afterwards forfeited before he had disponed the superiority, Ninewalls got the superiority decerned to him as vassal upon the Clan Act;—and being sued for payment of the price of the superiority, his defence was that Wedderburn had not conveyed it to him. The case was long argued on the Bench. Arniston thought that if the superiority could after the forfeiture have been claimed on the decreet-arbitral, that he would be liable although he took it on the Clan Act, but he thought that there lay no claim in law either to property or superiority of lands after forfeiture upon personal deeds or obligements. The President was of the same opinion, and that if any claim had lain upon the minute of sale while the price was not paid, the claimant must have paid the price to the Crown, or its donatar, whether superior or vassal; nay he thought that if Ninewalls had paid the price he might not only have taken the superiority on the Clan Act as vassal, but also (if Wedderburn had not other creditors to exhaust his estate) might have claimed back the price out of his estate. But the Court thought that on the statutes concerning forfeitures there lay a claim upon the decreet-arbitral for the superiority, both on the Clan Act and Act of Enquiry; that that claim was not prejudged by the forfeiture, or by the gift to superiors and vassals, and that his claiming on the gift as vassal could not prejudge the onerous assignees to the price,—and therefore found him liable.