Scottish Court of Session Decisions

Subject_1 FORFEITURE.

Attainder of the Estate of Perth

1750, Dec. 12.
Case No. No. 15.

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This claim was founded on the act 1700 against Popery, and he [1undin) claimed as nearest Protestant heir to James Drummond of Perth, the person last infeft, who died 11th May 1746, before the days limited for his surrender; and in the debate, he also insisted on the point overuled 30th ult. in Logie Almond's claim, that John Drummond never having surrendered, he was declared attainted from 18th April 1746, therefore his brother James having died after that day, when John was incapable to succeed to him, though he died before the 12th July, the day limited by the commission of the said act for his surrender, the estate could not forfeit by John Drummond's attainder, but only escheated ob defectum haredis, and 2do, that by the said act 1700, John Drummond being a professed Papist, was incapable of succeeding as heir. In the course of the debate, I moved a difficulty, Whether the claimant could be heir to John Drummond, because though by an express proviso in Earl Melfort's attainder by the Parliament of Scotland in 1695, the claimant, and his other issue by Sophia Lundin, his first wife, were saved from any corruption of blood, yet the father of James Drummond, the person last infeft, viz. James, commonly called Lord Drummond, having been attainted by act of Parliament 1st Geo. I. his blood was corrupted, and as the claimant was connected only by him to the person last infeft, the bridge was broken, as Hale expresses it? To which the claimant's Counsel made no other answer, but that he claimed as Protestant heir-male, and that by the law of England, an heir-tail's blood was not corrupted, but supposed entailed. But as this estate was absolutely at the disposal of each of the heirs, who were under no limitation, the English statute of Edward III. De Donis could not apply, and therefore the Court found that the claimant could not be heir to James Drummond,—renit. Dun. 2do, They thought that the succession was not by the act 1700 established on the Protestant without some legal deed by service or otherwise ascertaining that the nearer heirs professed Popery and the Protestant heir's own title;—that till then the right of apparency remained in the Popish heir, who might levy the rents, contract debts, be charged to enter heir, and even be served heir and infeft, if the Protestant heir did not oppose; all which deeds of his would be effectual against the Protestant heir;—that therefore the succession having devolved to him before he was effectually attainted, that is, before the day limited for his compearance, he would forfeit the estate to the Crown, and the Protestant heir could not draw it back;—therefore we found that the estate was forfeited, and dismissed the claim.