Scottish Court of Session Decisions

Subject_1 SUPERIOR AND VASSAL.

Farquharson
v.
Farquharson

1748, Dec. 14.
Case No. No. 10.

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He claimed the estate of Monaltrie, as superior. We all doubted whether he could carry it, that is, if he had fulfilled the conditions, because he was engaged in the Rebellion 1715. However, we agreed to determine the general point, which is stated as doubtful in the 21st Geo. II. the act to amend and to enforce the act of the 29th of the King, for the more effectual disarming the Highlands, viz. Whether the act lmo Geo. I. entitled act for encouraging superiors, vassals, &c. commonly called the Clan-act, and that clause of it in favours of loyal superiors which was expressly repealed by the said act 21st Geo. II. was limited to the Rebellion 1715, or to the life of the late King, or if it subsisted during the life of the Pretender till it was repealed? This question was heard three days at the Bar, Friday, Saturday, and Tuesday; and this day we would have ordered informations, but the lawyers would not agree to give them before the holydays, therefore we this day proceeded to advise, and found that it subsisted till that was repealed. We were full except Leven, who was absent; and were unanimous except the President, who declared himself of a different opinion, but did not give his reasons. There spoke Dun, and I, Drummore, Justice-Clerk, and Shewalton,—14th December 1748.

5th January 1749.—The objection to the claim was, that in the Rebellion 1715, Invercauld did not continue peaceable and loyal, but was taken prisoner at Preston, in Lancashire. The fact was admitted, but it was said that he continued loyal in the Rebellion 1745, on account of which the vassal Monaltrie was attainted of treason, and the condition of the Clan-act must be limited to the Rebellion for which the vassal was forfeited. The Lords unanimously found that he is not entitled to the benefit of the Clan-act.