No recompence found due to the Bailie and Clerk for life of a regality, by grant from the fiar, who had a gift of the liferenter's escheat, but was himself attainted after 11th Nov. 1746, for treasons committed before that time.
Click here to view a pdf copy of this documet : PDF Copy
Evan Bailie, as Bailie, and Alexander Monro, Clerk for life of the Regality of Lovat, by commission, 21st February 1738, from the late Lord Lovat, claimed a recompence for their respective offices.
Objected, The statute makes no provision in favour of Bailies for life.
2dly, To both claims, Lord Lovat's title to the estate of Lovat was made up of a gift of the liferent escheat, of Alexander M'Kenzie of Fraserdale, in whom was vested the liferent of the said estate and Regality, and of legal diligence, whereby he had denuded Hugh Fraser, the fiar thereof; but as the liferenter was alive at the date of the commission, and still so, he could not grant any in virtue of the right of fee, and the jurisdiction did not fall under liferent escheat nor, if it did, could be understood to be comprehended under the general gift, which did not mention it; but it was in the Crown either as not gifted, or as having remained with Fraserdale after the falling of his escheat, until it was forfeited by his attainder for the rebellion in 1715.
Answered, Lord Lovat had in him the full right of liferent and fee, consequently the whole estate; and the jurisdiction, which was a quality of the right to the lands, fell by the escheat, whereby the liferent of the estate itself was lost.
Objected, 3dly, By Lord Lovat's forfeiture the regality was suppressed, and with it the offices of the claimants, without the aid of the act of Parliament for abolishing jurisdictions.
Answered, That regalities were not extinguished by forfeiture, but vested in the Crown in virtue of the act made for that purpose; so that were it not for the statute abolishing jurisdictions, the claimants' offices would subsist, and therefore they were entitled to a compensation; especially as it could not be denied they were in possession on the 11th of November 1746, the day mentioned in the statute, as Lord Lovat was not then attainted.
Replied, That the attainder drew back to a time before the 11th of November 1746, so the claimants were not then in possession.
The Lords found them not entitled to a recompence.
Fol. Dic. v. 3. p. 364. D. Falconer, v. 1. No 243. p. 329.
